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Karnataka High Court · body

2016 DIGILAW 903 (KAR)

Fofou Jorge Mark, S/o. Fofou Zouma v. State of Karnataka by: Upparpet Police Station, Bangalore

2016-11-29

ANAND BYRAREDDY

body2016
ORDER : Heard the learned counsel for the petitioners and the learned State Public Prosecutor. 2. Petitioners are before this Court in the following circumstances: It is alleged that on 19.3.2016, information is said to have been received by the Deputy Commissioner of Police (Crime), Bangalore City informing that on 15.3.2016, within the limits of Kakinada Town Police Station of Andhra Pradesh, two persons from Namibia and Cameroon respectively, had cheated two businessmen dealing in Gold and had defrauded him of Rs.50,00,000/- and that it was suspected that they were now in the Bangalore City. This had been conveyed by the Deputy Commissioner of Police to the Police Inspector of the Central Crime Bureau, Bangalore City and then they were on the look out for the suspected persons, who are found to be staying in Room No.205 of Rialto Hotel, near Race Course, Sheshadripuram, Bangalore. The said police Inspector along with his men had conducted a raid on the room in which they were staying. On search of their belongings and their person it is alleged that the Police Officer found some reprinted U.S.Dollars and other currency notes of other countries. Also Indian currency notes of Rs.1,000/- which had been printed on A4 sheets numbering 75 and printing materials were also said to have been seized along with Rs.9 lakh in cash which is said to be part of the money defrauded from the gold businessman of Kakinada Town and also some fake passports which are in the name of Namibia and Ghana nationals. A few mobile phones were also said to have been seized. A few mobile phones were also said to have been seized. The seizure was said to have been made in the presence of Panchas and thereafter the petitioners were arrested and they were taken into custody on a suo motu report and lodged the same before the Station House Officer of the first respondent Upparpet Police Station, Bangalore City on 20.3.2016 at about 12.00 noon, upon which, First Information Report in Crime No.94/2016 for the offences punishable under Sections 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, under Section 14 of the Foreigners Act, 1946 and under Section 120B, Section 34 and 489C of the Indian Penal Code, as well as under Section 14(a) and (b) of the Foreigners Act, 1946 as well as under Sections 468, 489A, 489B and 471 of the Indian Penal Code and under Section 12(1)(B) of the Passport Act, 1967 was lodged. The petitioners were produced before the Magistrate and remanded to judicial custody and they have been in judicial custody since 20.3.2016. It is in this background that the present petition is filed. 3. The petitioners seek quashing of the entire proceedings, since the initial act of raid conducted on the room aforementioned was within the limits of Upparpet police station, where incriminating material is alleged to have been seized from the petitioners. Since the raid was apparently conducted to apprehend the petitioners, on information from the Andhra State police, they had no jurisdiction to conduct the raid unless they had obtained prior permission from the Investigating Officer who had already investigated the case registered against them in respect of the incident in Kakinada Town. Secondly, it is contended, that there could not have been a case registered for the several offences alleged in Bangalore City, when the raid conducted was in pursuance of the investigation being conducted by the Andhra Police in respect of a case registered before the Kakinada police station and therefore lodging of a second F.I.R. in relation to the same alleged offences is impermissible and on that ground he would submit that insofar as the proceedings initiated at Bangalore City ought to be quashed and at best the petitioners could be handed over to the Andhra Police to be prosecuted in accordance with law. This is the theme of the several grounds urged in the petition. 4. This is the theme of the several grounds urged in the petition. 4. The learned State Public Prosecutor on the other hand would raise a contention that it may not be correct to characterize the F.I.R. lodged in Bangalore Police Station as being the second F.I.R. and it is not continuation of the same transaction which is alleged. To lay a charge sheet against the petitioners for the offence punishable under several enactments such as the Passport Act, Foreigners Act are concerned they are independent offences for which they could be independently prosecuted at Bangalore and notwithstanding that on information received from the Andhra Police that the petitioners have been apprehended when they are alleged to be guilty of several offences punishable under other provisions of law, there is no bar for the Bangalore police also to institute independent proceedings. 5. By way of reply, the learned counsel Sri Hashmath Pasha would submit that, it is indeed a continuation of the same transaction, because it was the same petitioners whose passports were in their possession when they were allegedly said to have been prosecuted for the offences at Kakinada Town and the material that is now claimed as being in violation of the provisions of the Foreigners Act and the Passport Act is the very same material which was already available when they committed first offence and there is no impediment to prosecute the petitioners for the offences now alleged, before the very Court in Kakinada and there is no warrant for a second F.I.R. being lodged in Bangalore and this is contrary to the settled legal position. The learned counsel would rely upon the judgment in Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and Another, (2013) 6 SCC 348 . 6. In the light of the above contentions, the law as laid down by the Supreme Court in relation to the facts pertaining in Amitbhai Anilchandra Shah’s case is as follows; Allegedly the police are said to have killed ‘S’ on 25.11.2006 in a fake encounter and thereafter killed one of the material witnesses to the said fake encounter, that is, ‘K’ (wife of ‘S’) on 29.11.2005. The death of ‘S’ and his wife were in question in the first F.I.R. which was filed by CBI after transfer of the investigation from the State Police authorities as per directions of the Supreme Court in Rubabbuddin, Sheik Vs. The death of ‘S’ and his wife were in question in the first F.I.R. which was filed by CBI after transfer of the investigation from the State Police authorities as per directions of the Supreme Court in Rubabbuddin, Sheik Vs. State of Gujarat, (2010) 2 SCC 200 . In terms of the directions of the Supreme Court in Narmada Bai, Vs. State of Gujarat, (2011)5 SCC 79 , CBI took up further investigation into the alleged killing of ‘T’, a material witness to the fake encounter killings of ‘S’ and his wife. CBI also filed a second FIR and second charge sheet in respect of the said further investigation. The petitioners in the two writ petitions which were filed under Article 32 were accused in the said fake encounter cases. They sought for quashing of the second F.I.R. and treating the second charge sheet as a supplementary charge sheet on the first F.I.R. It was their contention that the second FIR was entirely in violation of their fundamental rights under Articles 14, 20, 21 of the Constitution of India and that the offence alleged in the second F.I.R. was part of the same conspiracy, series of acts and transaction as the offence alleged in the first F.I.R. and that even as per the stand of CBI during various stages, charges would have to be framed jointly and the trial would have to be conducted jointly as per Section 220 of Code of Criminal Procedure and that the competent court had already taken cognizance of all the three alleged killings in the first FIR itself. The stand of CBI was that the offences under two FIRs and charge sheets constituted distinct and separate offences arising out of separate conspiracies. The stand of CBI was that the offences under two FIRs and charge sheets constituted distinct and separate offences arising out of separate conspiracies. Placing reliance on Section 218 of Code of Criminal Procedure, CBI submitted that a distinct charge is to be framed for a distinct offence and that the concept of joint trial is an exception and not the rule and cannot be made applicable to the stage of investigation or filing of charge sheet under Section 173(2) of Code of Criminal Procedure and that there is no concept of joint investigation in Code of Criminal Procedure and that the only exception is under Sections 219 and 220 of Code of Criminal Procedure that a person can be tried for more offences than one committed within a period of one year and that investigation had revealed that the accused persons had conspired with others to abduct and murder ‘S’ with the help of ‘T’ and at the time of abduction and murder of ‘S’ and his wife there was no conspiracy to murder ‘T’. It was only later, when the accused persons feared that ‘T’ was becoming a threat to them and could reveal the facts of the first conspiracy as he was material witness in the first murder case, that the second conspiracy was hatched to kill ‘T’. 7. The petitions were allowed quashing the second F.I.R. directing that the charge sheet filed in second F.I.R. be treated as a supplementary charge sheet in the first F.I.R. It was held by the Supreme Court as under; Administering criminal justice is a two end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. Accordingly, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences. The Investigating Officers are the kingpins in the criminal justice system. Accordingly, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences. The Investigating Officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence, they are bestowed with dual duties that is to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same. The various provisions of Code of Criminal Procedure clearly show that an officer in-charge of a police station has to commence investigation as provided under Section 156 or 157 of Code of Criminal Procedure on the basis of the entry of the F.I.R., on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 Cr.P.C. and forward his report to the Magistrate concerned under Section 173(2) of Cr.P.C. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh F.I.R., he is empowered to make further investigation normally with the leave of the Court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports as is evident from Section 173(8) of Cr.P.C.. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of Cr.P.C. Thus, there can be no second F.I.R. and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences Further, the officer in-charge of the police station has to investigate not merely the cognizable offences reported in the F.I.R. but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 and empowered under Section 173(8) of Cr.P.C. A case of fresh investigation based on the second or successive FIRs. not being a counter case filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first F.I.R. either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of Cr.P.C. or under Articles 226 or 227 of the Constitution of India. A second FIR (which is not a cross case) in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. The said principle of law laid down in T.T. Antony Vs. State of Kerala, (2001) 6 SCC 181 has never been diluted in any subsequent judicial pronouncements even while carving out exceptions. To determine whether different offences ought to be treated as part of the same transaction, the “consequence test” laid down in C.Muniappan Vs. State of Tamil Nadu, (2010) 9 SCC 567 , may be taken aid of. The said test prescribes that if an offence forming part of the second F.I.R. arises as a consequence of the offence alleged in the first F.I.R. then offences covered by both the F.I.Rs. are the same and accordingly, the second F.I.R. will be impermissible in law. State of Tamil Nadu, (2010) 9 SCC 567 , may be taken aid of. The said test prescribes that if an offence forming part of the second F.I.R. arises as a consequence of the offence alleged in the first F.I.R. then offences covered by both the F.I.Rs. are the same and accordingly, the second F.I.R. will be impermissible in law. In other words, the offences covered in both the F.I.Rs. shall have to be treated as a part of the first F.I.R. Furthermore, merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one charge sheet could not be filed. This being the dictum of the Supreme Court. 8. Therefore, the second charge sheet that is lodged before the Bangalore Court was a part of the first charge sheet that was already filed by the Kakinada police and proceedings could be taken thereof in accordance with law in Crime No.52/2016 and the materials seized could form part of the proceedings therein, for all legal purposes. And the proceedings initiated at the Bangalore Court in Sessions Case*No.777/2016 on the file of LXIII Additional City Civil and Sessions Judge, Bangalore City shall stand closed. The petitioner shall be handed over to the custody of the Kakinada police in Crime No.52/2016.