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2020 DIGILAW 448 (KAR)

S. Rajesh Reddy v. State

2020-02-14

K.NATARAJAN

body2020
JUDGMENT K. Natarajan, J. - This revision petition is filed by the petitioner-accused assailing the order of dismissal of application under Section 227 of Code of Criminal Procedure (for short Cr.P.C.) passed by the Prl. District and Sessions Judge, Chikkamagaluru in Sessions Case No. 63/2015 (hereinafter referred to as trial Court) dated 05.11.2019. 2. Heard the arguments of learned counsel for the petitioner and the learned High Court Government Pleader. 3. The rank of the parties before the trial Court is retained for the sake of convenience. 4. The case of the prosecution is that the prosecution-Kalasa Police, Chikkamagaluru has filed charge-sheet against the accused for the offence under Sections 489-A, 489-B and 489-C of Indian Penal Code (for short IPC) alleging that on 12.02.2015, the PSI, Kalasa Police Station while he was on petrol duty at about 11.00 a.m., he had received a credible information that a person who was traveling in red colour car trying to circulate fake/counterfeit currency notes to the public at Kalasa. Immediately, the complainant secured two panch witness and visited the spot and seized 28 currency notes of Rs. 500/- denominations and 18 notes of Rs. 100/- denominations and prepared panchanama between 11.15 a.m. to 11.45 a.m., He has taken the accused to the Police Station and registered the suo-motu complaint by preparing a report in Crime No. 9/2015 for the above said offences and after producing the accused before the Committal Court, the Committal Court committed the case to the Sessions Court. After appearance, the accused was enlarged on bail and filed an application for discharge under Section 227 of the Cr.P.C. The same was dismissed by the trial Court. Assailing the same, the accused preferred the criminal revision petition No. 890/2017 before this Court and this Court vide order dated 18.03.2019 has set aside the order and remitted the matter back to the trial Court to consider the grounds urged by the learned counsel before the Court in pursuant of the guidelines issued by the Honble Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 . Thereafter, again the trial Court after hearing the arguments dismissed the application by impugned order dated 05.11.2019 which is challenged before this Court. 5. Thereafter, again the trial Court after hearing the arguments dismissed the application by impugned order dated 05.11.2019 which is challenged before this Court. 5. Learned counsel for the petitioner has strenuously contended that inspite of remanding the matter back to the trial Court, the trial Court again not considered that the investigation commenced prior to the registration of the case and panchanama has been prepared between 11.15 a.m. to 11.45 a.m., In the said case, the crime number also mentioned, but the case was registered at 12.45 p.m., Such being the case, mentioning the crime number in the panchanama is clearly violation of the provisions of Section 154 of the Cr.P.C., that the investigation commenced prior to the registration of the FIR. Therefore, as per the judgment of the Honble Supreme Court in the case of Lalita Kumari (supra), the investigation prior to the registration of the case is illegal under the law. Therefore, the entire proceedings are liable to be set aside. 6. Similarly, learned counsel also submits that this Court has quashed the proceedings of FIR in the case of Manoj Kumar R and others v. State of Karnataka in Crl.P. No. 4629/2016, dated 06.09.2016 and another case in Ashru Alias Ashraf and Others v. State of Karnataka in Crl.A. No. 66/2010, dated 09.07.2015 reported in 2015(5) KLJ 663 held that since case was investigated without registration of FIR, entire proceedings is liable to be quashed and hence, prayed for allowing the petition. 7. Per contra, learned High Court Government Pleader has supported the order of the trial Court and contended that the offence is grievous in nature, where the accused is trying to circulate fake/counterfeit currency notes. Once the Investigating Officer received credible information that a person who was traveling in red colour car trying to circulate fake/counterfeit currency notes to the public at Kalasa which was seized through the panchanama which is in a format, while preparing panchanama, signature of panchas were taken at Sl. No. 8 of the panchanama which is in a format. Therefore, merely mentioning the crime number, that itself at this stage cannot be presumed that the FIR number was mentioned only for manipulating the case against the accused and further contention of the learned counsel for the petitioner cannot be acceptable that the accused was arrested on 10.02.2015 and it has to be considered only during the trial. Therefore, merely mentioning the crime number, that itself at this stage cannot be presumed that the FIR number was mentioned only for manipulating the case against the accused and further contention of the learned counsel for the petitioner cannot be acceptable that the accused was arrested on 10.02.2015 and it has to be considered only during the trial. Therefore, without impeaching the evidence of the complainant, the Court cannot presume or discharge the accused at this stage and further contended that the Police have sent the counterfeit currency notes and machinery used for preparing the currency notes which was seized by the Investigating Officer. Such being the case, until recording the evidence of the prosecution witness, the Court cannot discharge the accused on this ground. Therefore, prayed to dismiss the same. 8. Upon hearing the arguments and on perusal of the records, the point that arises for my consideration is: 'Whether the order of dismissal of the discharge application calls for interference?' 9. On perusal of the record, admittedly the petitioner approached this Court in previous occasion by filing revision No. 890/2017, this Court has remanded the matter back to the trial Court vide order dated 18.03.2019 to reconsider the discharge application based upon the guidelines issued by the Honble Supreme Court in Lalitha Kumaris case (supra). The Honble Supreme Court has issued guidelines at paragraph No. 120 of its judgment and also held at paragraph Nos. 120.5 and 120.6 which are as under: '120.5 - The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6 - As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.' 10. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.' 10. The trial Court after considering the direction issued by this Court and the guidelines issued by the Honble Supreme Court has dismissed the application holding that the Court can consider the merits of the case only after recording the evidence. The contention raised by the accused cannot be looked into during the course of hearing on the application for discharge. The other materials also considered by the trial Court while dismissing the application. Admittedly, the trial Court is required to consider whether the prosecution is able to show that the accused was in the possession of the alleged fake/counterfeit currency notes as on the date of his apprehension. The first document with crime detail report shows that the accused was apprehended at the alleged time and date i.e., on 12.02.2015, there were two witnesses found on the crime for having witnessing the seizure and thereafter, the Investigating Officer has prepared the detailed report and registered the case at 12.45 p.m., No doubt, the crime number mentioned in the crime detail report as Crime No. 9/2015 and the same was mentioned in the report of the Informant or Police officer. Merely, the crime No. 9/2015 at page No. 1 which is in a format, that itself cannot be a ground to believe that the investigation commenced prior to the registration of FIR. If at all, this crime was registered subsequent to the investigation of the case are to be considered by the trial Court only after examining the Informant Police-Inspector before the Court during the trial. That apart whether the investigation commenced or not, prior to the registration of the case which is only ascertained during the trial. Even the contention raised by the accused that he was arrested by the Police on 10.02.2015 but not 12.02.2015. The trial Court has also ordered for an enquiry and the enquiry report not yet received. 11. Such being the case, the Court cannot come to the conclusion either arrested on 10.02.2015 or 12.02.2015. Admittedly, the accused while producing before the Magistrate on 13.02.2015, he has stated that he has been arrested on 10.02.2015. This has to be considered only in the cross-examination of the Investigating Officer during the trial. Therefore, all these aspects cannot be considered by the trial Court while considering the discharge application. Admittedly, the accused while producing before the Magistrate on 13.02.2015, he has stated that he has been arrested on 10.02.2015. This has to be considered only in the cross-examination of the Investigating Officer during the trial. Therefore, all these aspects cannot be considered by the trial Court while considering the discharge application. The Court is required to consider whether prima facie material is available against the accused for framing of charge in order to proceed with the trial, but not verifying the probative value of the documents produced by the prosecution. The Court cannot appreciate the said documents for framing of the charge. The contention raised by the learned counsel can be acceptable. The accused-petitioner is not entitled for discharge before the trial Court that the alleged offence is under Section 489-B and that was circulating fake/counterfeit currency notes to the public which is heinous offence. Therefore, whatever the contention or ground urged by the learned counsel shall be considered only after the cross-examination of the prosecution witnesses. Therefore, the judgment relied upon by the learned counsel in the case of Manoj Kumar R and others (supra) cannot be acceptable at this stage and another judgment in the case of Ashru Alias Ashraf and Others v. State of Karnataka in Crl.A. No. 66/2010 dated 09.07.2015 not considered the discharge application, therefore, the impugned order of the trial Court does not call for interference and the revision is devoid of merits and liable to be dismissed. Accordingly, revision petition is dismissed. The trial Court is directed to proceed in accordance with law. The grounds urged by the learned counsel for the petitioner is kept open. The trial Court shall not be influenced by any of the observations made by this Court. In view of disposal of the main petition, pending I.A. stands disposed of.