Allowed

Shri.Mahesh S/O Appasab Bhate v. State of Karnatka

Karnataka HC2 Jul 2020CRL.P/100830/2019

Case brief

AI extract

What is this about?

This judgment allowed three criminal petitions seeking quashing of proceedings under the Karnataka Excise Act and IPC. The court held that taking cognizance in printed proformas is illegal and investigation via surprise raid without registering an FIR earlier is untenable, constituting an abuse of process.

What did the court decide?

Criminal petitions Nos.100827, 100829 and 100830 of 2019 allowed and corresponding proceedings in C.C. Nos.1923 of 2017, 832 of 2016 and 1448 of 2018 quashed.

Shri.Mahesh S/O Appasab Bhate Vs State of Karnatka — Quashing and FIR | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 02^ND DAY OF JULY, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE ASHOK G NIJAGANNAVAR

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CRIMINAL PETITION NO.100827 OF 2019 C/W. CRIMINAL PETITION NOS.100829 AND 100830 OF 2019

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IN CRL.P.NO.100827 OF 2019 BETWEEN:

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SHRI BASAVRAJ S/O. SHIVAPPA BHATE, AGE : 40 YEARS, OCC : BUSINESS, R/O.KAROSHI, TQ : CHIKODI, DIST : BELAGAVI-591 226.

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….PETITIONER (BY SRI SHIVARAJ S.BALLOLI, ADVOCATE)

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AND:

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STATE OF KARNATAKA THROUGH KHADAKLAT POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580 008.

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…RESPONDENT

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(BY SRI PRAVEEN K.UPPAR HCGP)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED

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ORDER DATED 11.07.2017 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC, CHIKODI IN C.C.NO.1923 OF 2017 THEREBY TAKING COGNIZANCE AGAINST THE PETITIONER FOR THE OFFENSES PUNISHABLE UNDER SECTION 32 AND 34 OF THE KARNATAKA EXCISE ACT, 1965 AND SECTION 188 OF IPC AND QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1923 OF 2017 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, CHIKODI NOW ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, CHIKODI INSOFAR AS THE PETITIONER IS CONCERNED FOR THE OFFENCES PUNISHABLE UNDER SECTION 32 AND 34 OF THE KARNATAKA EXCISE ACT, 1965 AND SECTION 188 OF IPC.

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IN CRL.P.NO.100829 OF 2019 BETWEEN:

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SHRI BASAVRAJ S/O. SHIVAPPA BHATE, AGE : 40 YEARS, OCC : BUSINESS/ OWNER OF SIDDESHWAR WINE SHOP, R/O.KAROSHI, TQ : CHIKODI, DIST : BELAGAVI-591 226.

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….PETITIONER

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(BY SRI SHIVARAJ S.BALLOLI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH CHIKODI POLICE STATION,

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REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580 001.

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…RESPONDENT

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(BY SRI PRAVEEN K.UPPAR, HCGP)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER DATED 22.07.2016 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC, CHIKODI IN C.C. NO.832 OF 2016 THEREBY TAKING COGNIZANCE AGAINST THE PETITIONER FOR THE OFFENSES PUNISHABLE UNDER SECTION 32 AND 34 OF THE KARNATAKA EXCISE ACT, 1965 AND QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.832 OF 2016 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC COURT, CHIKODI NOW ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, CHIKODI INSOFAR AS THE PETITIONER IS CONCERNED FOR THE OFFENCES PUNISHABLE UNDER SECTION 32 AND 34 OF THE KARNATAKA EXCISE ACT, 1965.

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IN CRL.P.NO.100830 OF 2019 BETWEEN:

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SHRI MAHESH S/O. APPASAB BHATE, AGE : 52 YEARS, OCC : BUSINESS, R/O.KAROSHI, TQ : CHIKODI,

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DIST : BELAGAVI-591 226.

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….PETITIONER

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(BY SRI SHIVARAJ S.BALLOLI, ADVOCATE)

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AND:

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STATE OF KARNATAKA THROUGH SADALAGA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580 001.

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…RESPONDENT

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(BY SRI PRAVEEN K.UPPAR, HCGP)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER DATED 20.09.2018 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC COURT, CHIKODI IN C.C.NO.1448 OF 2018 THEREBY TAKING COGNIZANCE AGAINST THE PETITIONER FOR THE OFFENSES PUNISHABLE UNDER SECTION 32, 34, 36 AND 38(A) OF THE KARNATAKA EXCISE ACT, 1965 AND QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1448 OF 2018 ON THE FILE OF I ADDL. CIVIL JUDGE AND JMFC COURT, CHIKODI INSOFAR AS THE PETITIONER IS CONCERNED FOR THE OFFENCES PUNISHABLE UNDER SECTION 32, 34, 36 AND 38(A) OF THE KARNATAKA EXCISE ACT.

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THESE PETITIONS ARE COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in Criminal Petition No.100827 of 2019 is arrayed as accused No.2 in C.C.No.1923 of 2017 on the file of II Additional Civil Judge and JMFC, Chikodi for the offences punishable under Section 32 and 34 of the Karnataka Excise Act, 1965 and Section 188 of IPC.

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The petitioner in Criminal Petition No.100829 of 2019 is arrayed as accused No.3 in C.C.No.832 of 2016 on the file of II Additional Civil Judge and JMFC, Chikodi for the offence punishable under Section 32 and 34 of the Karnataka Excise Act.

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The petitioner in Criminal Petition

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No.100830 of 2019 is arrayed as accused No.5 in C.C.No.1448 of 2018 on the file of I Additional Civil

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Judge and JMFC Court, Chikodi for the offence punishable under Sections 32, 34, 36 and 38(A) of the Karnataka Excise.

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In all the aforesaid criminal petitions the grounds of revision are similar. The petitioners have sought for quashing the entire criminal proceedings initiated against them on the following grounds :

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(a) The petitioners are falsely implicated and the charge sheet has been filed against the petitioners merely on the information said to have been disclosed by the other accused persons who have been apprehended while conducting the raid.

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(b) These petitioners have been accused of

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committing the alleged offences

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punishable under Sections 32 and 34 of the Karnataka Excise Act, but they

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were not caught/ arrested while selling

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the liquor at the spot.

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and FIR are vague and there are no sufficient grounds for proceeding

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against the petitioners.

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(d) The complainant/respondent has not

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at all followed the mandatory provisions under Section 154 of Cr.P.C. The initiation of criminal

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proceedings against the petitioners

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suffers from serious infirmities.

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(e) In the event of continuation of

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proceedings they will be put to great

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hardship and injustice.

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Heard the learned counsel for the

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petitioners and learned HCGP-State.

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The main grounds urged for quashing the further proceedings in C.C.Nos.1923 of 2017, 832 of

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2016 and 1448 of 2018 against the petitioners are

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that,

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[I] The order passed by the learned Magistrate taking cognizance is not in accordance with law.

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(II) The procedure prescribed under Section 154 of Cr.P.C. is not followed, thus the entire proceedings stands vitiated.

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In support of the said contentions, the learned counsel for the petitioners has cited the following decisions.

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(i) State of Haryana and Others Vs. CH.Bhajan Lal and Others, AIR 1992 SC 604.

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(ii) Rajiv Thapar & Ors. Vs. Madan Lal Kapoor, AIR 2013 SC (Supp) 1056.

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(iii) K.Ramachandra reddy Vs. State of Karnataka by the Station House Officer

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& Another, (2013) 1 KCCR 334.

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(iv) Smt. Shashikala W/o. Annasaheb Jolle

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Vs. The State of Karnataka, Crl.P. No.101186/2018.

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(v) Shri. Girishchandra S/o.

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Veerbhadrayya Hiremath and another Vs. The State by Lokayukta, ILR 2013 KAR 983.

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(vi) Somashekhrappa S/o. Late Chowdappa

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Vs. The State of Karnataka by Lokayukta, 2013 STPL 10533

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Karnataka.

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(vii) H.Ganga Setty and Others Vs. The State of Karnataka and another,

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Crl.P.No. 5802/2016.

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(viii) Vikas Kumar @ Vikas S/o Sukhalal Jain Vs. The State of Karnataka, Crl.P.No.4476/2018.

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(ix) State of M.P. Vs. Mukesh and Others, (2006) 13 SCC 197.

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(x) Sasi Vs. State of Kerala, (2000) 10 SCC

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(xi) Ram Parkash Vs. State of Punjab, AIR 1959 SC 1.

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Per Contra , the learned HCGP submitted

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that the defects pointed out by the learned counsel are not glaring or material defects. Thus, there are no valid grounds for quashing the proceedings.

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It is well settled that, the power under Section 482 of Cr.P.C. has to be exercised by the High Court, inter alia to prevent the abuse of process of any Court or otherwise secure the ends of justice. When the Criminal proceedings are initiated based on the illicit material collected on search and arrest which are per-se illegal and vitiated not only a conviction and sentence passed on such material but also the trial itself. The

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proceedings cannot be allowed to go on as it amounts to abuse of process of the Court. In such a

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case not quashing the proceedings would perpetuate the abuse of process of the Court resulting in great hardship and injustice to the accused.

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In a decision reported in (2013) 1 KCCR 334 case of K.Ramachandra Reddy Vs. State of Karnataka by the Station House Officer & Another, it is observed as under :

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“23. The position in law will have to be referred to at this juncture. This Court, in the case M/s. Vijaya Bank Vs. State by the Labour Enforcement Officer, reported in ILR 2000 Karnataka 4773, has held that taking cognizance of an offence being a judicial act after application of kind, the Magistrate should not use “printed Proforma” in which even the words “Cognizance is taken, are also printed or typed.”

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Having regard to the submission made by the learned counsel for the petitioners, this Court has gone through the entire charge sheet records and orders passed by the Magistrate for taking

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cognizance and others. In all three criminal cases, wherein the petitioners are arrayed as accused, the orders passed by the Magistrate for taking cognizance are in a printed proforma. In view of the decisions reported in ILR 2000 Kar. 4773 and (2013) 1 KCCR 334 taking cognizance of an offence being a judicial act after application of mind the Magistrate should not pass the order mechanically in a printed proforma. In present cases, it is evident that the orders of cognizance are in printed proforma as such they are not in accordance with law.

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The next ground is that regarding the procedure to be followed under Section 154 of Cr.P.C. The main contention of the learned counsel for the petitioners is that the excise officials have conducted the raid without registering the FIR, hence the proceedings initiated against the petitioners cannot be sustained in law.

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In a decision of division bench of this

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Court in Criminal Petition No.15941 of 2012 in the case of Sri.Girishchandra S/o. Veerabhadrayya Hiremath and another Vs. The State by Lokayuktha Police, Yadri , it is observed as under:

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“10. With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a police officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible.

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If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR.”

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In the instant cases, the excise officials have conducted the raid without registering the FIR on the basis of the credible information received by them. Thus, it is apparent on the face of the record that the procedure prescribed Under Section 154 of Cr.P.C. is not followed as such FIR is untenable.

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In the context of facts of this case that the conduct of investigation by surprise raid in the absence of FIR is untenable and the same would be illegal.

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For the aforesaid reasons, this Court is of the view that there are valid grounds for quashing the proceedings. Accordingly, I pass the following :

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ORDER

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Criminal Petition Nos.100827, 100829 and 100830 of 2019 are allowed.

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The proceedings in C.C.No.1923 of 2017 on the file of II Additional Civil Judge and JMFC, Chikodi for the offences punishable under Section 32 and 34 of the Karnataka Excise Act, 1965 and Section 188 of IPC initiated against the petitioner-accused No.2 (Crl.P.No.100827 of 2019) and in C.C.No.832 of 2016 on the file of II Additional Civil Judge and JMFC, Chikodi for the offence punishable under Section 32 and 34 of the Karnataka Excise Act initiated against the accused No.3 (Crl.P.No.100829 of 2019) and in C.C.No.1448 of 2018 on the file of I Additional Civil Judge and JMFC Court, Chikodi for the offence punishable under Sections 32, 34, 36 and 38(A) of the Karnataka Excise Act initiated against the petitioner-accused No.5 (Crl.P. No.100830 of 2019) are quashed.

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Sd/-

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JUDGE

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CKK

Shri.Mahesh S/O Appasab Bhate v. State of Karnatka

Case brief

What is this about?

What did the court decide?

Shri.Mahesh S/O Appasab Bhate v. State of Karnatka

Case brief

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