@JUDGMENTTAG-ORDER
Rathnakala, J.@mdashThis petition is filed seeking to quash the F.I.R. registered against the petitioner herein by Karnataka Lokayuktha, Bellary police station in Lok. Crime No. 10/2009. As the facts unfurl, the Police Inspector of respondent Lokayuktha on receipt of a credible information on 30.12.2009 during evening hours about the untoward conduct of Motor Vehicle Inspectors at Hagari RT.O. check post in stopping the vehicles passing through the check post and taking illegal gratification from the drivers under demand etc., went to the spot along with the panchas and the staff at 5.00 a.m. They noticed two home guards stopping the lorries passing through the check posts and insisting the inmates of the vehicles to show the documents to the official in the check post. Accordingly, drivers and cleaners of the lorry were alighting from the vehicles and running to the check post with their documents: after talking to the officials inside the check post they were giving money to the officials. The Investigating Officer, on inquiry with the three drivers of the lorries was informed that they had paid bribe of Rs. 400/-, Rs. 500/- and Rs. 600/- respectively to the private persons in the check posts, but no receipt was given to them. Those drivers/cleaners were brought to the check post and they showed the Inspector of Motor Vehicle and three private persons, who had received money from them. The private persons, on inquiry, further revealed that the money is kept on the cot as per the instruction of the Motor Vehicle Inspector at the instruction of the P.I. the Motor Vehicle Inspector produced the currency notes from the cot, documents and cash of Rs. 46,920/- were seized. The amount of Rs. 46,920/- is the amount depicted in various receipts. The written explanation of the Motor Vehicle Inspector/petitioner herein and the drivers and cleaners was recorded The P.I. was informed that no register was maintained to declare the personal cash. The penalty amount of Rs. 46,920/- collected under the receipt was handed over to Assistant Regional Transport Officer and was remitted to the Government. From search of the room in which the petitioner was staying, from underneath the cot additional amount of Rs. 6,987/- was traced, mahazar was drawn, the P.I. returned to the police station and registered the case. After investigation, he has filed ''C'' report.
2. Learned counsel for the petitioner submits that after failing to collect any incriminating evidence against the petitioner the respondent - Lokayuktha has filed ''C'' report, but that by itself is not sufficient for him to get exonerated from the allegations made against him in the F.I.R He is denied timely promotion under the pretext that he has not been fully exonerated of the allegation, but only ''C'' report is filed. There is every possibility that at a future point of time, the F.I.R. may be revoked and he may be prosecuted. Since his juniors have been promoted, that has resulted in mis-carriage of justice. The very act of the P.I. in proceeding to the check post without registering a case to conduct investigation on the basis of the so called credible information received by him in respect of a cognizable offence not in accordance with the procedure contemplated under Section 154(1) of Cr.P.C., has no legal sanctity in view of the various judicial pronouncements of this Court (Crl. P. No. 10616/2013 D.D. 23.08.2013 K. Yerriswamy v. State of Karnataka, Lokayuktha, Bellary; Crl. P. No. 15941/2012 c/w. Crl. P. No. 15852/2012 D.D. 05.02.2013 Sri Ginshchandra and Another v. The State by Lokayuktha Police, Yadgir (D.B.); Crl. P. No. 1001/2013 D.D. 09.04.2013 Sri K. Ashwath Reddy and Another v. Karnataka Lokayuktha Police, Police Wing, City Division, Bangalore; Crl. P. No. 3213/2012 c/w. Crl. P. Nos. 2142, 2877, 2910 and 2942 of 2012 D.D. 03.09.2012 -L. Shankaramurthy, N.A. Ramesh, B.H. Shankare Gowda, S. Dinesh, Smt. H. Jayamma and Another v. The State by Lokayuktha Police, City Division, Bangalore Urban Division, Bangalore; Crl. P. No. 10442/2013 D.D. 18.03.2013 Somashekhrappa v. The Karnataka Lokayukta, Belgaum; Crl. P. No. 11477/2011 D.D. 26.03.2013 Shri C. Hemanth Kumar v. Karnataka Lokayuktha, Hospet, Bellary District). When the Lokayuktha challenged Crl. P. No. 2142/2012 (N.A. Ramesh''s case) judgment of this Court in Special Leave Petition (Criminal) No. 3508/2013, it was considered along with bunch of cases and was rejected.
3. Yet in another case reported in
4. Learned Standing Counsel for Lokayuktha in reply submits that since ''C'' report is filed, the petitioner cannot have any grievance about the registration of the FIR. It is not the case of Lokayuktha that a case is registered on false information, but for want of evidence the case is closed with ''C'' report. That does not mean that the petitioner is given a clean chit. He was found to be in possession of excess money, disproportionate to the cash amount collected under receipts. His explanation, if any, is liable to be examined by his Disciplinary Authority. He wants to wriggle out of the departmental inquiry which is initiated against him, under the guise of seeking quashing of FIR and seizure mahazar.
5. With regard to the legality of the complaint registered preceding seizure mahazar the submission of learned Standing Counsel for Lokayuktha is, the judgments of this Court declaring FIRs registered subsequent to seizure mahazar, as illegal were passed prior to the judgment of the Apex Court in
6. Learned Standing Counsel for Lokayuktha further adds that in the case on hand the I.O. having received the information recorded the gist of information in his case diary and proceeded to the spot. Without entering into the premises he could not have ascertained about the illegal transactions going on in the check post. Having seen the accused indulging in demanding and receiving the bribe amount, he could not have waited to draft a suo motu complaint, return to his office, register the case and make effort to catch hold of the offenders red handed. Once he determines to seize the cash amount believed to be the bribe money, Section 100 of Cr.P.C. comes into play. Sub-section (4) of Section 100 of Cr.P.C. contemplates that the search shall be conducted in the presence of two or more independent and respectable inhabitants of the locality. Having foreseen the exigencies that may arise, he has proceeded to the spot along with the panch witnesses. After ascertaining the passing of the illegal gratification from the driver/cleaners of the check post, he has seized the money and the explanation offered by the accused was not satisfactory. That is how the case in respect of the offence under Sections 7, 8, 13(1)(d) read with Section 13(2) of the P.C. Act came to be registered. Since the drivers who had paid the bribe amount did not assist for further investigation, it was inevitable for the I.O. to submit ''C'' report. As per Karnataka Police Manual final reports case in respect of undetected cases are commonly referred to as ''C'' Final report.
7. The learned Standing Counsel further persuades this aspect of seizure mahazar prior to registration of the case as a part of preliminary inquiry on the source of a reportable judgment of the Division Bench of the High Court of Judicature at Bombay, Bench at Aurangabad, distinguishing the case of our High Court in Crl. P. No. 3213/2012 and connected cases D.D. 03.09.2012, the seizure mahazar conducted prior to registration of the case has observed at para 9 as follows--
"9. When a complainant lodges a complaint it should contain narration of all the events that constitute the offence under section 7 of the Act. As far as demand and agreement of illegal gratification is concerned, the complainant would vouch for it. When it comes to proving acceptance of such gratification, the complainant and shadow panch would vouch for it. In view of these necessary requirements to prove an offence under section 7 of the Act, the First Information Report must contain entire narration, and the entire narration is possible only if earlier a trap is laid and it is successful. The pre-trap panchanama and post-trap panchanama are merely formalities to give credence to the allegation. What is important in evidence that is given in such case is substantive evidence of the complainant and shadow panch. So, the formalities that are undertaken during the preliminary inquiry are merely steps that are required to be followed before lodging a complaint. In a way all that takes place prior to registration of offence under Section 7 of the Prevention of Corruption Act is more or less part of the original complainant''s narration. As said above, if such narration constituted an offence, it is only then an offence is registered."
8. Further submission of learned Standing Counsel for Lokayuktha is that, the Apex court in the case of
9. In the light of the above submissions, the sole point that arises for my consideration is--
"Whether there are valid grounds to quash the FIR, seizure mahazar conducted prior to registration of the case?"
10. This is the second petition under Section 482 of Cr.P.C. filed by this petitioner. His earlier petition filed at the stage of investigation came to be disposed reserving right to urge all the grounds to seek discharge before the trial Court. But, before reaching the stage of urging for discharge ''C'' final report is filed and he is before this Court for the second time probably for the reason, departmental inquiry is initiated against him on the basis of incriminating material collected by the I.O. during seizure mahazar i.e., from the underneath of his cot Rs. 6,987/- excess money is recovered which did not tally with the receipts passed in respect of the money collected for the Government. He is not disowning this cash amount, but has his own explanation about its possession, but legitimacy or otherwise of this cash amount is beyond the purview of this petition though jurisdiction under Section 482 of Cr.P.C. is of wider amplitude. Without a full-fledged inquiry his explanation about the excess money seized from his possession cannot be judged either as legal or illegal.
11. In Lalita Kumari''s case (supra) maximum of seven days have been accorded for the Investigating Officers of corruption case to take on the exercise of preliminary inquiry before registering case depending on facts and circumstances of the case to ascertain the truthfulness of the complaint before its registration. But the scope and extent of such preliminary inquiry is not enumerated in the said judgment.
In the above noted judgment of the Division Bench, High Court of Judicature at Bombay, at Aurangabad, it was observed in respect of trap mahazar held in illegal gratification cases in between the period of receipt of the complaint by the I.O. and registration of FIR that, "the procedure that is followed prior to registration of the case in these corruption cases is a part of preliminary inquiry."
12. It is the eloquent persuasion of the Special Public Prosecutor on the Court that the search mahazar conducted prior to registration of the FIR is legal and admissible in evidence, being in the nature of preliminary inquiry contemplated in Lalita Kumari''s case. But in my considered opinion said proposition cannot be applied in the case on hand for the reason that the High Court of Judicature at Bombay Bench at Aurangabad was dealing with bunch of cases, which were all definite cases of traps, catching the accused red handed, arrest and subsequent registration of the case. in the case on hand, basically there was no complaint at all. The information received by the I.O. was about on going bribe transaction in the RTO check post. It is not palatable to accept the contention of the learned Special Public Prosecutor that the I.O. had no other go except to hurry to the spot with panch witnesses, immediately on receipt of the information for conducting preliminary inquiry and thereby had to conduct the seizure mahazar by following the mandatory provision of Section 100 of Cr.P.C. As could be seen from the record, the I.O. received information on 29.12.2009 procured the official pancha witnesses on the same evening and raided the check post at the wee hours of 30.12.2009. Unhesitatingly, the view taken by our High Court in N.A. Ramesh v. State of Karnataka and also other cases, noted supra, which is declined to be interfered by the Apex Court holds the field and the FIR registered subsequent to seizure mahazar in violation of mandatory provisions of Section 154 of Cr.P.C. is vitiated and illegal.
13. Having held so, the next question is whether the illegality in registering the FIR is sufficient to quash the FIR and the seizure mahazar under the jurisdiction of Section 482 of Cr.P.C.? and whether such special circumstance has arisen even though the case has ended up in ''C'' final report without prosecuting the petitioner..
14. In Bhajan Lal''s case (supra), seven categories of cases are listed by way of illustration, wherein the extraordinary power under Article 226 of the Constitution of India or the inherent power, under Section 482 of Cr.P.C. as below--
"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or ''complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) Where a criminal proceeding is manifestly attended with mala fide and/''or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
15. Patently the case on hand does not fall under any the category. Though the I.O. failed to collect evidence against the petitioner, which is sufficient to make out the offences punishable under Sections 7, 8, 13(1)(d) and Section 13(2) of P.C. Act, however has recovered some disproportionate cash amount in pursuance of which, a departmental inquiry is said to have been initiated. As noticed in the preceding para, this amount is not disowned by the petitioner and he has his explanation about its possession. Quashing the FIR and seizure mahazar in the present circumstances is nothing but frustration of the departmental inquiry which would amount to fresh abuse of process of law. The petitioner is yet to prove his lawful possession of excess money before the Inquiry Authority. In that view of the matter, and also in the light of the circumstances enumerated in Bhajan Lal''s case, I am of the considered opinion that it is not a fit case to quash the FIR and the seizure mahazar in question under the extra ordinary jurisdiction under Section 482 of Cr.P.C., accordingly, the petition is dismissed.
