Prakash Vs the State of Karnataka

THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 07.12.2018 PASSED BY THE PRL. SESSIONS JUDGE, AT VIJAYAPUR IN CRL.A.NO.07/2017 AND FURTHER BE PLEASED TO SET-ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE

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DATED 04.01.2017 PASSED BY THE III ADDL. JMFC, VIJAYAPUR, IN C.C.NO.2513/2008 FOR THE OFFENCE P/U/SEC.32 & 34 OF KARNATAKA EXCISE ACT, 1965 & 273 OF IPC AND ACQUIT THE PETITIONER/ACCUSED.

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THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This Criminal Revision Petition is filed by the

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petitioner, being aggrieved by the judgment of conviction and order of sentence dated 04.01.2017 passed in C.C.No.2513/2008 by the Court of III Additional JMFC, Vijayapur (for short ‘Trial Court’) and its confirmation judgment and order dated 07.12.2018 passed in Crl.A.No.7/2017 by the Court of Principal Sessions Judge at Vijayapur (for short ‘Appellate Court’), 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 and 34 of the

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Karnataka Excise Act, 1965 and under Section 273 of Indian Penal Code (for short ‘IPC’).

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The ranks of the parties would be considered henceforth as per their rankings in the Trial Court for convenience.

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Brief facts of the case are:

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It is the case of the prosecution that on 22.06.2007 at about 12.30 p.m., the Excise Staff on receiving the credible information had been to Apsara Talkies in Mangwadi Colony of Vijayapur City along with panchas and found that the accused was having in possession of 5 liters of country made illicit arrack and he intended to sell the same to the public for their consumption. Hence, the Excise Staff had apprehended the accused and conducted raid. After conducting the investigation, police have submitted the charge sheet.

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To prove the case of the prosecution, the prosecution examined in all 4 witnesses as PW.1 to PW.4 and got marked 5 documents as Exs.P1 to P5 and also

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identified one material object as MO.1 – sample bottle. On the other hand, the accused has not led any evidence nor marked any documents on his behalf.

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The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 and Section 273 of IPC. Being aggrieved by the same, the accused 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 accused has preferred this revision petition seeking to set aside the concurrent findings.

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Heard Sri Shivanand V. Pattanashetti, learned

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counsel for the petitioner and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent

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State.

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It is the submission of the learned counsel for

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the petitioner/accused that the investigation was

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conducted based on the FIR. However, the said FIR has not been followed by the information or complaint of the informant, therefore, registering the FIR without a complaint of the informant, held to be illegal and registration of FIR and its consequential proceedings must be vitiated. However, the Courts below without going into the legal aspects of the matter, have proceeded further to pass the impugned judgments, which are required to be set aside.

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Per contra, learned High Court Government

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Pleader has vehemently justified the concurrent findings and he further submitted that the panchanama is considered as an information which was required to be given by the informant and the said information has been reduced as FIR in terms of Section 154 of Cr.P.C. Hence, there is no infirmity or illegality in the concurrent findings recorded by the Courts below. Both the Courts below have concurrently held that the prosecution has proved its case beyond all reasonable doubts and recorded the

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conviction. Therefore, the petitioner has not made out any ground to interfere with the concurrent findings and accordingly, the petition has to be rejected.

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Having heard the learned counsel for the respective parties and also perused the findings of the Courts below, it appears that the prosecution has got marked five documents. Except the said five documents, nothing has been produced to prove the case of the prosecution.

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The investigation has to be followed after registration of FIR and the FIR has to be followed by the information given by the informant. All these processes are interlinked with each other. Unless and until there is a complaint, the FIR cannot be registered. Without FIR, the investigation cannot be carried out. However, in this case, the FIR had been registered on the basis of panchanama which cannot be termed as neither complaint nor information as contemplated under Section 154 of Cr.P.C. Having regard to the said aspect of the matter, I am of the

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considered view that without information having been given by the informant, registration of FIR is held to be illegal and consequent proceedings thereof would be vitiated. However, the Courts below have committed an error in going through the records and rendering conviction, which is required to be set aside.

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Hence, I proceed to pass the following:

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ORDER

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(i) The Criminal Revision Petition is allowed.

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(ii) The judgment of conviction and order of sentence dated 04.01.2017 passed in C.C.No.2513/2008 by the Court of III Additional JMFC, Vijayapur and the judgment and order dated 07.12.2018 passed in Crl.A.No.7/2017 by the Court of Principal Sessions Judge at Vijayapur are set aside.

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(iii) The accused is acquitted for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 and Section 273 of IPC.

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(iv) Bail bonds executed by the accused, if any, stand cancelled.

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Sd/(S RACHAIAH) JUDGE

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SRT List No.: 1 Sl No.: 38 CT:PK

Prakash v. the State of Karnataka

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Prakash v. the State of Karnataka

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