Partly allowed

Mr Syed Asif v. State of Karnataka

Karnataka HC20 Apr 2021WP/2344/2021

Case brief

AI extract

What is this about?

The High Court allowed the writ petition in part, quashing FIR proceedings due to the Magistrate passing two orders on the same requisition without applying judicial mind. The court set aside orders rejecting the release of seized money, directing its release to the petitioner.

What did the court decide?

FIR quashed; orders of Magistrate and Revisional Court set aside; application under Section 457 Cr.P.C. allowed; seized money directed to be released immediately.

Mr Syed Asif Vs State of Karnataka — Property and Title | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 20^TH DAY OF APRIL, 2021

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶6

WRIT PETITION NO.2344/2021 (GM-RES)

¶7

BETWEEN:

¶8

MR.SYED ASIF S/O BASHA RESIDING AT 3^RD CROSS JANNAT NAGAR, SAGARA SHIVAMOGGA DISTRICT.

¶9

… PETITIONER

¶10

[BY SRI P.P.HEGDE, ADVOCATE-(THROUGH V.C.)] AND:

¶11

1 . STATE OF KARNATAKA BY MINISTRY OF HOME AFFAIRS REPRESENTED BY PRINCIPAL SECRETARY VIDHANA SOUDHA BENGALURU-560001

¶12

2 . STATE OF KARNATAKA

¶13

BY SAGARA TOWN POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-01

¶14

3 . INSPECTOR OF POLICE SAGARA TOWN POLICE STATION SAGARA SHIVAMOGGA.

¶15

… RESPONDENTS [BY SRI H.R.SHOWRI, HCGP FOR R1 TO R3]

¶16

¶17

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR IN CRIME No.101/2020 OF SAGAR TOWN POLICE STATION, FOR THE OFFENCE PUNISHABLE UNDER SECTION 98 OF THE KARNATAKA PLICE ACT, 1963 AND ALL FURTHER PROCEEDIGNS IN THE SAID CASE, PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SAGAR VIDE ANNEXURE-A.

¶18

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

¶19

O R D E R

¶20

This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. seeking the following reliefs:-

¶21

(i) Issue a writ of certiorari quashing the impugned order dated 05.08.2020 passed by the Prl. Civil Judge and JMFC, Sagara granting permission to Sagar Town Police Station to register FIR on requisition dated 04.08.2020 made by the police as per Annexure-K.

¶22

(ii) Issue a writ of certiorari quashing the FIR in Crime No.101/2020 of Sagar Town Police Station for the offence punishable under Section 98 of the Karnataka Police Act, 1963 and all further proceedings in the said case, pending on the file of

¶23

¶24

Principal Civil Judge and JMFC, Sagar vide AnnexureA.

¶25

(iii) Issue a writ of certiorari quashing the order dated 18.09.2020 passed by the Principal Civil Judge and JMFC in rejecting the application filed by the petitioner under Section 457 of Cr.P.C. vide Annexure-F and also set aside the order dated 08.01.2021 passed by V Additional District and Sessions Judge, Shivamogga in Crl.R.P.No.10018/2020 vide Annexure-J and consequently order for the release of item No.1 and 2 seized in P.F.No.70/2020 in Crime No.101/2020 of Sagar Town Police Station, forthwith to the petitioner;

¶26

(iv) Issue appropriate writ or directions directing the respondent No.2 and 3 to pay appropriate compensation to the petitioner as this Hon'ble Court may deem fit in the facts and circumstances of the case;

¶27

(v) Issue appropriate writs or directions directing the respondent No.1 to hold enquire into the lapses and excesses committed by the police officers and take appropriate action against the concerned police officers by holding them personally

¶28

¶29

liable to pay compensation to the petitioner for his sufferings;

¶30

(vi) Grant such other reliefs as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity.

¶31

The factual matrix of the case is that on 04.08.2020 at about 7.15 p.m. the police from the Sagar Town Police Station i.e., PC No.1233 Sri.Santhosh Naik and PC No.1635 Sri.Hazrath Ali were on gust duty, and they noticed the car bearing Reg No.KA-16/N-0120 was proceeding and the accused was transporting the currency notes illegally. On the basis of the credible information, at around 7.30 p.m., they stopped the car and on enquiry, the accused has not given any proper and satisfactory information about the money he was transporting. Hence, he was taken to the Sagar Police Station at around 7.45 p.m. with report. Hence, based on the said report, the police sought for the permission from the learned Magistrate to take action against him.

¶32

¶33

On the requisition dated 04.08.2020, the learned Magistrate accorded permission to the police to investigate the matter and proceed against him. Thereafter, the FIR is registered against the petitioner herein. The learned counsel appearing for the petitioner would vehemently contend that the ingredient invoked against the petitioner herein is for the offence punishable under Section 98 of the Karnataka Police Act, 1963 (for short ‘the KP Act’).

¶34

Learned counsel would vehemently contend that the certified copy, which has been produced as Annexure-K discloses that on the requisition itself, the learned Magistrate has passed an order as ‘Permitted’. The very order of permitting the police to investigate the matter is not an order passed by applying the judicious mind. On that ground itself, the very registration of the case against the petitioner is required to be quashed.

¶35

Learned counsel also would vehemently contend that when the amount was seized, an application under Section 457 of Cr.P.C. was filed before the Trial Court seeking release of the said money. Learned Magistrate has rejected the said

¶36

¶37

application by coming to the conclusion that no material has been placed before the Court in respect of the money being drawn from his account and he was carrying the same. The said order was challenged before the Revisional Court in Crl.R.P.10018/2020, wherein the Revisional Court also reiterating the reasons assigned by the learned Magistrate rejected the application. Being aggrieved by the same, the present petition is filed seeking an order for quashing of the registration of the FIR; to quash the order dated 18.09.2020 passed by the learned Magistrate and also to set aside the order of the Revisional Court dated 08.01.2021 passed by the I Additional District and Sessions Judge, Shivamogga. Learned counsel also seeks an appropriate writ or directions directing the respondents No.2 and 3 to pay appropriate compensation to the petitioner and also seeks further writ or appropriate directions directing respondent No.1 to hold enquiry into the lapses and excesses committed by the police officers and to take appropriate action against the concerned police officers by holding them personally liable to pay

¶38

¶39

compensation to the petitioner for his sufferings and grant such other reliefs.

¶40

Learned High Court Government Pleader would

¶41

submit that the petitioner has not shown any material for having carried the money nor shown either the bank passbook for having drawn the amount or for having cash of Rs.38 lakhs in his custody. Both the learned Magistrate as well as the Revisional Court, while rejecting the application have assigned the reasons and also discussed that no material has been placed for having drawn the money from the account or with regard to the cash in his custody to the extent of Rs.38 lakhs. Learned counsel also would brought to the notice of this Court that the learned Magistrate while according permission to the police to conduct the investigation and register the case, has passed a detailed order on the over leaf of the requisition. The said order has been passed by applying his judicious mind and hence, there cannot be any quashing of the proceedings.

¶42

In reply to the arguments of the learned HCGP, the

¶43

petitioner’s counsel on the earlier occasion brought to the notice

¶44

¶45

of this Court that there are two orders passed on the requisitions i.e., one order being ‘Permitted’ whereas the other one is a detailed order passed by the learned Magistrate, upon which the State is relying on and requested this Court to secure the records from the Trial Court. Learned counsel also would vehemently contend that the earlier order passed by the learned Magistrate as “Permitted” on the requisition has been destroyed and only the order passed subsequently bearing anti-date is available with the original records. Hence, it is clear case of manipulation of the records at the instance of the police by the learned Magistrate, by which learned Magistrate also buds to the request of the police by passing two orders on the same requisition. Therefore, there are serious lapses on the part of the learned Magistrate in passing the two orders on the same requisition.

¶46

Having heard the learned counsel for the petitioner

¶47

and the learned High Court Government Pleader appearing for the State, and also on perusal of the original records which was secured from the Trial Court, both the orders are found on

¶48

¶49

record. On perusal of both the orders, they are passed on the requisition given by the police, which are dated 04.08.2020. On perusal of the orders dated 05.08.2020, the learned Magistrate has made an endorsement on the requisition itself as ‘Permitted’ and on the overleaf of the very same requisition, learned Magistrate passed a detailed order stating that ‘Perused. On perusal, it appears that there is commission of non-cognizable offence. Hence, it is just and necessary to permit the I.O. to investigate. Hence, I.O. is permitted to investigate the matter and report’. It is clear that there are two requisitions on record and on one requisition, it is ordered as ‘permitted’ and on another requisition, a detailed order is passed. On perusal of the order sheet of the Court below, which has been secured, on 04.08.2020, no order sheet has been put up and first day order sheet is dated 10.08.2020. It is also important to note that an order has been passed on the requisition as ‘Permitted’ and also a detailed order, wherein the learned Magistrate has come to the conclusion that there is a commission of non-cognizable offence.

¶50

¶51

Having taken note of the both the orders dated 05.08.2020, it is clear that the learned Magistrate first of all has not applied his mind while according permission to the police to investigate the matter and he made an endorsement on the requisition as ‘Permitted’. It is also clear that the other order passed by the learned Magistrate has come into effect in a doubtful and suspicious circumstances as contended by the learned counsel for the petitioner.

¶52

Since the learned counsel for the petitioner raised the objection regarding the two orders being passed on the same requisition, this Court ordered to secure the original records from the Trial Court. The order passed by the learned Magistrate is on the over leaf and there is no separate order being passed on the said requisition. Even considering both the orders, it is not in compliance with Section 155(2) of Cr.P.C. No separate order has been passed except making an endorsement on the requisition as ‘permitted’ on one hand and on the other hand, as ‘Perused. On perusal, it appears that there is commission of noncognizable offence. Hence, it is just and necessary to permit the

¶53

¶54

I.O. to investigate. Hence, I.O. is permitted to investigate the matter and report’, which is passed on the over leaf.

¶55

Having taken note of the order passed by the learned Magistrate, it is clear that the said order has been passed by non-application of the judicious mind. Hence, there is a force in the contention of the learned counsel for the petitioner that on the very said ground itself, the proceedings initiated against the petitioner are required to be quashed as prayed in the petition. Hence, the case for the relief of quashing of the FIR registered against the petitioner has been made out by the petitioner herein.

¶56

The second prayer is with regard to rejection of the application filed under Section 457 of Cr.P.C. before the learned Magistrate and also before the Revisional Court. Learned counsel brought to the notice of this Court that petitioner is a businessman and he is having current account, the statement of which is placed before the Court. The said account extract clearly discloses that there are transactions of depositing the amount of Rs.28 lakhs on 22.04.2020 and thereafter also, the

¶57

¶58

amounts are withdrawn and deposited in terms of lakhs. He is a proprietor of M/s. Kashif Supari Traders. The petitioner being a businessman was carrying a huge amount and also having the bank statement reflecting the huge amounts being deposited to his account to the tune of Rs.15 lakhs and Rs.28 lakhs and also other amounts have been withdrawn and so also the cash transactions and deposits are made. When such being the case, it is not the business of the police to seize the said amount from the custody of the petitioner.

¶59

The police have seized the money from the custody of the petitioner and invoked Section 98 of the KP Act. An application was filed before the Trial Court seeking for release of the said amount. If the seized amount is unaccounted, it is for the Income Tax Department to look into the matter and not the police officers. No doubt, the Trial Court has considered the fact that the matter has been ceased before the Income Tax Department for payment of tax is concerned. When such being the case and the amount has been seized from the petitioner, both the Courts have taken note of the said aspect, if the

¶60

¶61

petitioner is liable for non–payment of the income tax, it is for the Income Tax Department to deal with it.

¶62

Learned counsel for the petitioner would also

¶63

contend that he would pay the income tax, if he is liable to pay any such tax. Under the circumstances, the learned Magistrate and the Revisional Court ought to have taken note of the said fact and allowed the application filed under Section 457 of Cr.P.C. subject to executing the indemnity bond or by imposing any other conditions to the satisfaction of the concerned Court but the same has not been done. Now the matter has been ceased before the Income Tax Department regarding the payment of income tax is concerned. When the petitioner is a businessman carrying the amount of Rs.38 lakhs in his car, this Court has come to the conclusion that there is a non-compliance of Section 155(2) of Cr.P.C. and this Court has to quash the very initiation of the proceedings against the petitioner herein. The petitioner is also entitled for the relief of setting aside the orders passed by the learned Magistrate and also the Revisional Court and consequently application filed under Section 457 of Cr.P.C. deserves to be allowed.

¶64

¶65

No doubt, the petitioner has also sought for the relief of compensation and to take action against the police. The said relief cannot be considered for the reasons that at the first instance, the petitioner was carrying the amount of Rs.38 lakhs without any documentary proof and no documentary proof are placed before the police except stating that he is a businessman. Hence, the question of ordering for payment of compensation or directing the police to take action against the police does not arise. Hence, I do not find any grounds to grant the relief as sought other than the release of money and also quashing of the proceedings. Hence, the petitioner is not entitled for any other reliefs.

¶66

Now coming to the relief with regard to the orders passed by the learned Magistrate, having perused the records, there are two orders being passed by the learned Magistrate i.e., one is ‘Permitted’ and the other order is passed on the over leaf of the requisition. It is the learned Magistrate, who has to explain as to what has made him to pass two orders on the same requisition i.e., one as ‘Permitted’ and the other order being

¶67

¶68

passed on the over leaf of the requisition. It is also important to note that there are two requisitions on record. It creates suspicion in the mind of the Court as to what made the police to place two requisitions before the learned Magistrate. Thus, it is clear that the other order passed by the learned Magistrate on the over leaf of the requisition came into existence under suspicious circumstances.

¶69

Learned counsel for the petitioner also brought to the notice of this Court that a copy application was filed on 13.01.2021 and in the application, it is sought for grant of certified copies of the entire order sheet, FIR, complaint, mahazar, PF, requisition submitted by the police, permission granted by the learned Magistrate, application and objections along with memo of documents. Learned counsel also brought to the notice of this Court that the certified copy of the order passed by the learned Magistrate as ‘Permitted’ is given to him on 15.01.2021 and the disputed order passed by the learned Magistrate has not been issued. When the copy application was filed and certified copies were issued on 15.01.2021, now the

¶70

¶71

prosecution is relying upon the order, which requires to be explained by the learned Magistrate. Hence, it is appropriate to call for explanation from the learned Magistrate as to why he has passed two orders and why there are two requisitions placed before him. No separate order has been passed by the learned Magistrate and also there is no reference in the order sheet for having received the requisition.

¶72

The Registry is directed to call for explanation from the learned Magistrate. In order to ensure that such incidents should not happen in future and also in the interest of the institution, this order has been passed. The propriety of the order of the learned Magistrate should not be questioned and in future, these type of two orders on the same requisition shall not be passed and it undermines the dignity of the Court and gives wrong message to the Society that the police personnel circumvent the situation to get such orders when it goes against them. It appears that the other order has been passed at the instance of the police. After receiving the explanation from the

¶73

¶74

learned Magistrate, the same shall be placed before the concerned Committee.

¶75

In view of the discussion made above, I pass the

¶76

following:-

¶77

ORDER

¶78

(i) The writ petition is hereby allowed in part.

¶79

(ii) The proceedings initiated against the petitioner in Crime No.101/2020 for the offence punishable under Section 98 of KP Act is hereby quashed.

¶80

(iii) The order dated 18.09.2020 passed by the learned Magistrate and also the order dated 08.01.2021 passed by the Revisional Court are hereby set aside.

¶81

(iv) Consequently, the application filed by the petitioner under Section 457 of Cr.P.C. is hereby allowed.

¶82

(v) In view of quashing of the proceedings against the petitioner herein, the concerned police is directed to release the items No.1 and 2 seized

¶83

¶84

under PF No.70/2020 in Crime No.101/2020 of Sagar Town Police Station in favour of the petitioner, forthwith.

¶85

(vi) Registrar General is directed to call for explanation from the P.O. by sending the copy of the order passed by this Court and thereafter, place the explanation before the appropriate Committee.

¶86

(vii) The Office is directed to return the original records to the Court below, forthwith.

¶87

Sd/JUDGE

¶88

PYR

Mr Syed Asif v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr Syed Asif v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. B. R. Prabhakara Vs State of Karnataka

Mr. Raghuram K Beluru Vs the State of Karnataka

Shivarama Naik Vs State of Karnataka

Sri Pratik Girish Barbhaya Vs State of Karnataka

Krishnappa Vs the State of Karnataka

Chetanakumar Vs State of Karntaka