Dismissed

Mahadeva v. State of Karnataka

Karnataka HC18 Jan 2022CRL.RP/1132/2012

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition challenging conviction under the Essential Commodities Act. Upholding trial and appellate courts, it held an FIR-issuing officer could investigate without bias found and independent witness hostility did not vitiate conviction where prosecution evidence was otherwise reliable.

What did the court decide?

None. Revision petition dismissed, conviction and sentences of lower courts remain intact.

Mahadeva Vs State of Karnataka — Quashing and FIR | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL REVISION PETITION NO.1132/2012

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BETWEEN : MAHADEVA S/O RANGAIAH, AGED 35 YEARS, S. K. DRIVER, R/AT NAGAVALLI VILLAGE, CHAMRAJANAGAR TALUK, AND DISTRICT-571313.

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… PETITIONER

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(BY SMT. SOHANI HOLLA, AMICUS CURIAE)

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AND :

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STATE OF KARNATAKA, BY EAST POLICE STATION, CHAMARAJANAGAR-571313.

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… RESPONDENT

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(BY SRI S.VISHWA MURTHY, HCGP)

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THIS CRL.R.P. IS FILED UNDER SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF THE LEARNED DIST. & SESSIONS JUDGE, CHAMARAJANAGAR CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE TRIAL COURT OF ADDL. C.J. & J.M.F.C., CHAMARAJANAGAR IN CRL. CASE NO.919/2007 ON 25.01.2012 AND DIRECT THE ACQUITTAL OF THE PETITIONER OF THE CHARGES LEVELLED AGAINST HIM AND ETC.,

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY THROUGH VIDEO CONFERENCE, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed by the accused in C.C.No.919/2007 on the file of the Additional Civil Judge and JMFC, Chamarajanagar. The petitioner has assailed the judgment of the Sessions Judge and Presiding Officer, Fast Track Court, Kollegal, in Crl.A.No.7/2012 confirming the judgment of conviction in C.C.No.919/2007.

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2. The prosecution case is as below:

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On 22.06.2007 P.W.1 Shivaswamy who was working as Sub-Inspector at Chamarajanagar (East Police Station) received credible information at about 2:15 pm., that one person was transporting two cans of kerosene without any licence. On receipt of this information, P.W.1 went to that place with other police personnel and seized two cans of kerosene from the petitioner. He collected some samples of kerosene in two bottles and drew up a mahazar. Returning to the

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police station, he registered FIR, undertook further investigation and filed the charge sheet against the petitioner for the offence punishable under Section 3 read with Section 7 of the Essential Commodities Act.

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The learned Magistrate tried the petitioner for the above said offence. The prosecution examined 7 witnesses, P.W.1 to P.W.7 and relied upon 5 documents marked as Exs.P.1 to P.5 and 4 material objects marked as MO.1 to MO.4.

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Having appreciated the evidence, the learned Magistrate came to the conclusion that the prosecution was able to prove its case beyond reasonable doubt that the petitioner/accused was transporting kerosene for selling it without any licence and thus, found him guilty. The learned Magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay fine of Rs.1,000/with default sentence of simple imprisonment for one month. The petitioner then preferred an appeal, Crl.A.No.7/2012. The Appellate

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Court also confirmed the judgment of the Magistrate and thereby dismissed the appeal. Hence, this revision petition.

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I have heard the arguments of Smt.Sohani Holla, Amicus Curiae appointed for the

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petitioner/accused and learned Government Pleader for the respondent – State.

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The learned Amicus Curiae for the

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petitioner/accused raised three points during her argument. Firstly, that P.W.1 himself being the complainant should not have conducted investigation. Therefore, the entire investigation was vitiated. The trial against the petitioner and conviction imposed on the petitioner is not sustainable on this ground. Second point that she argued was that out of seven witnesses examined by the prosecution, independent witnesses to the mahazar, P.Ws.2 and 4 did not support and only based on the evidence of the Police Officer and the constables, the Magistrate could not have convicted the petitioner. Third point that she argued was that the

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petitioner was sitting in an open place and without ascertaining whether the petitioner really possessed the plastic cans, P.W.1 proceeded to seize the cans. In this view, there is no evidence against the petitioner that he possessed kerosene for being transported without any licence. She argued that the Appellate Court has not re-appreciated these aspects of the matter. Hence, she submitted that the revision petition deserves to be allowed and the judgments of both the courts below are to be set aside and petitioner/accused has to be acquitted of the offence.

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The learned Government Pleader for the

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respondent – State submitted that there is no rule that the Police Officer who registers the FIR should not conduct the investigation. The entire crossexamination by P.W.1 does not disclose any personal interest that he possessed in charge sheeting the petitioner. Element of bias has not been brought out and in this view, the investigation conducted by PW.1 cannot be said to be bad. He further argued that

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though the independent witnesses, P.Ws.2 and 4 turned hostile, it cannot be a ground for disbelieving the entire prosecution case. The testimony of P.Ws.1, 3, 5, 6 and 7 is consistent and their evidence clearly shows that the petitioner was found in possession of kerosene cans when they were seized on 22.06.2007 and that he did not have licence too. The trial Court has appreciated the evidence in right perspective and the Appellate Court has also re-appreciated the evidence. The courts below have consistently held on facts that the petitioner was found in possession of kerosene without any licence and thereby, he committed the offence punishable under Section 3 read with Section 7 of the Essential Commodities Act. Findings on facts cannot be disturbed in the revision petition and therefore, revision petition is liable to be dismissed.

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8. I have considered the arguments.

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On perusal of the evidence adduced by P.W.1 what is found is that he received credible

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information on 22.06.2007 at about 2.15 pm., when he was in police station and then came to the spot with the police constables, and seized the kerosene from the possession of the petitioner. He drew up the mahazar as per Ex.P.2 at that place in the presence of two independent witnesses namely P.Ws.2 and 4. Based on the report given by him, FIR was registered as per Ex.P.3. The evidence discloses that he conducted investigation and then filed the charge sheet. If the cross-examination of P.W.1 is perused, it becomes clear that nothing is elicited from him that he had personal interest in the matter. As a police officer, he received credible information and then took further action. Therefore, being a police officer, if he discharged his duties in accordance with law, it cannot be said that he was precluded from holding investigation after seizing the kerosene from the petitioner.

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With regard to legal point urged by the Amicus Curiae, it is to be stated that there is no rule as

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such that the police officer at whose instance the FIR is registered cannot conduct investigation. The Hon’ble Supreme Court in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in AIR 2020 SC 4794 has clearly held that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and on this ground the accused is not entitled for acquittal. Therefore, in view of authoritative pronouncement of the Hon’ble Supreme Court in this regard, the argument of Amicus Curiae cannot be accepted. The investigation by the police officer who registered the FIR is vitiated only when bias or unfairness in the investigation is forthcoming or if it is proved that the police officer proceeded against the petitioner with vengeance. In this case, these aspects are not forthcoming. The arguments of Amicus Curiae cannot be accepted.

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So far as the seizure of kerosene from the petitioner is concerned, it is true that the evidence

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discloses that the petitioner was sitting in an open place. The mahazar was conducted by P.W.1 at that place in the presence of P.Ws.2 and 4. Both of them have not supported the mahazar marked at Ex.P.2. But this cannot be a reason for disbelieving the testimony of P.W.1 and other witnesses. The trial Court has clearly held that the testimonies are believable. The Appellate Court has also confirmed it. Even if re-look is given to the testimonies of witnesses, I do not find that they have been discredited in the crossexamination. There is no rule as such that the evidence given by a police officer or constables should not be believed in the absence of evidence by independent witnesses. Therefore, here is a case where the testimonies of P.Ws.1, 3, 5 to 7 are believable. There is ample proof that the petitioner possessed kerosene without any licence. Even the FSL report confirms that the seized material was kerosene. Therefore, I do not find any ground to interfere with the reasons assigned by the trial Court as well as the Appellate Court.

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The sentence imposed by the trial Court and

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confirmed by the Appellate Court need not be interfered with as it is adequate and reasonable in the facts and circumstances. Therefore, revision petition is

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dismissed .

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The learned Amicus curiae does not want to claim the fee as she wants to work pro bono and in this regard, she is permitted to file a memo.

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Sd/- JUDGE

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Mahadeva v. State of Karnataka

Case brief

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Mahadeva v. State of Karnataka

Case brief

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