The Central Government by means of an order dated 24.02.2009 at Para-8 clearly says that periodical checks can only be under the Food Adulteration Act with an assistance of State Food Nutrition Board, which has been approved by the Hon'ble Supreme Court on 22.4.2009. The police checks and investigation would be contrary to the order of the Hon'ble Supreme Court and directions of the Central Government, where the Central Government is very clear that the Standards of a Scheme under the ICDS scheme is completely governed by the provisions ofFood Adulteration Act and with the assistance of the Food Nutrition Board. The Lokayukta has no power to investigate and assume the jurisdiction in respect of the subject control under the Central enactments in view of the judgment of the Supreme Court in AIR 1983 SC 150 Para-21 where the Central law prevails over the State Law and the Lokayukta Act is held to be a general statute and Food Safety Act is a special statute in AIR 1954 SC 752.
61. In 2011(2) Crimes 250 (All) (D.B) and 2011(4) Crimes 110 (All), it is held that in respect of a subject falls under the Food Safety Act, no charge sheet or FIR can be filed under the IPC. Para-26 of the said judgment reads as follows:
"26. It is not the case of the State Counsel that the carbonated drinks or juice based beverages are not intended for human consumption or that they are not substances for the purposes of section 3(zw). In PFA Act, standards were prescribed for various food articles in the Appendix B. In Appendix-B, carbonated water is defined in Entry A.01.01. By virtue of section 98, the rules including Appendix B has been temporarily transported to FSSA till the regulations under the FSSA are notified. Therefore, we are unable to agree with the arguments advanced on behalf of the State that theprovisions of the FSSA are not applicable in the instant case.
In view of the aforesaid crystal clear legal proposition and particular provisions under the FSSA we are in agreement with the arguments advanced by the petitioner's Counsel that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide notification dated 29th July, 2010, the authorities can take action only under the FSSA as it postulates an overriding effects over all other food related law including the PFA Act. In view of the specific provisions under the FSSA, the offences relating to adulteration of food that are governed under the FSSA after July 29, 2010 are to be treated as per the procedures to be followed for drawing and analysis of samples as have been provided for. The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against an alleged offence of food adulteration, it is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the FSSA and, therefore, the police have no authority or jurisdiction to investigate the matter under FSSA. Section 42 empowers the Food Safety Officer for inspection of food business, drawing samples and sending them to Food Analyst for analysis. The Designated Officer, after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution. Therefore invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned Government Order is wholly unjustified and nonest. furthermore, it appears that the impugned Government Order has been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction."
Section 4(1) of Cr P C provides that "All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". Section 4(2) of Cr P C says "All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying to otherwise dealing with such offences. Section 5 of Cr P C says "Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form or procedure prescribed by any other law for the time being in force. Therefore, it is clear, by invoking IPC for supply of alleged substandard food, it is mandated to follow the special procedure laid down under FSSA. Without following the prescribed procedure test of samples as per the whims and fancies in a private unrecognized laboratory even prior to the FIR greatly prejudiced the petitioners. Even if IPC is invoked the special procedure laid down under FSSA for testing and declaring the product as substandard should have been followed. If that had been followed, the petitioners would have got the right to contest the test reports by way of testing the counter samples at the referral laboratory as per Section 43(2) of FSSA and this opportunity is denied to the petitioners.
Karnataka High Court
Christy Fried Gram Industry vs State Of Karnataka on 30 October, 2015
Citation;2016 CRLJ482 Karnat
W P No.6225-26/2014 is filed by the petitioners under Article 226 of the Constitution of India seeking to quash the complaint dated 9.2.2012 at Annexure-A and FIR dated 8.3.2012 at Annexure-B, issue direction to the Lokayuktha that M/s.Pristine Laboratories report dated 10.4.2012 shall not be looked into and shall not be considered and that the certificate dated 10.4.2012 issued by M/s.Pristine Laboratoriies shall not be used in evidence in court of law or in advertising media.
2. W P No.2172-73/2015 is filed under Articles 226 & 227 of the Constitution r/w Section 482 of the Code of Criminal Procedure seeking to issue writ of mandamus directing the respondents not to act upon the Final Report in Crime No.20/2012 of Lokayukta Police at Annexure-G dated 8.3.2012 on the ground the same is violative of Section 4(2) r/w Section 5 of Code of Criminal Procedure and the special procedure provided for enquiry, investigation and prosecution as envisaged under the Food Safety and Standards Act, 2006 and alternatively quash the final report of Lokayuktha at Annexure-G dated 8.3.2012 in Crime No.20/2012.
3. Criminal Petition Nos.7997/2013 and Criminal Petition No.815/2014 are filed under Section 482 of the Code of Criminal Procedure seeking to quash First Information Report in Crime No.20/2012 dated 8.3.2012 registered by the Respondent Police.
4. Criminal Petition No.7996/2013 is filed under Section 482 of the Code of Criminal Procedure seeking to quash the FIR in Crime No.25/2012 dated 26.3.2012 registered the Respondent Police at Annexure-A.
5. Facts of the case to be stated in brief in W P No.6225-
26/2014 are that the first petitioner is the sole proprietor of a proprietary concern, Christy Fried Gram Industry and second petitioner is its General Manager.
6. The Government of Karnataka through its Women and Child Welfare Department floated a project called, Mahila Supplementary Nutrition Production and Training Centres (MSPTC for short), which was initially for setting up of 27 MSPTCs in the State and later it was revised to 137, duly ratified by the cabinet.
7. The final product was prepared by the women groups and payment was made to the petitioner by the women groups for the services rendered and materials supplied by the petitioner and not by the Government or the Department.
8. That an anonymous letter dated 5.10.2010 said to have been received by Lokayuktha office making frivolous allegations against the petitioners in the writ petitions and the then Director of Department of Women and Child Welfare. The petitioner's employee Ms.Priya Udupi who was removed from service of the petitioner concern on 10.10.2009 joined hands with vested interests and concocted story of supply of substandard food and payment of bribery amount to Child Development Project Officers/Deputy Directors, etc.
9. The first information report was registered on 8.3.2012 by Lokayuktha Police alleging supply of substandard food by the petitioner, paying bribe to officers and officials for showing undue favour to the petitioners. A search warrant was obtained on 8.3.2012 and search was conducted on the office of the petitioners on 9.3.2012.
10. The contentions raised by the petitioners in W P No.6225-26/2014 are as follows:
(1) That Lokayukta Police encroached the jurisdiction of Lokayuktha as anonymous complaint was made to Lokayuktha.
(2) That investigation was done for about 18 months prior to registration of FIR. Delay in registration of FIR is not explained.
(3) Eighteen months preliminary enquiry cannot be termed as discreet enquiry.
(4) Investigation report is taken as FIR in gross violation of procedure contemplated underSection 157 of the Code of Criminal Procedure.
(5) On plain reading of FIR, no case has been made out against the petitioners who are not public servants. (6) Search warrant is issued in violation of Section 93 r/w Form 10 of Cr P C vitiating all further proceedings.
(7) The charges of supply of substandard food is not maintainable and offences u/s 270, 120B and 420 IPC are not attracted as without obtaining the orders of the Special Judge, the Police Officers have investigated offences under IPC in gross violation of law.
(8) Substandard products are not manufactured by the petitioner but if at all, by the MSPTCs. Petitioner's concern received monthly supply orders from 137 MSPTCs, for the supply of raw materials and the payments for such supplies are made by the MSPTCs. to the petitioner.
(9) Food Safety and Standards Act is not invoked which has overriding effect on all other laws under Section 89 of FSSA relating to food standards. This is in violation of the directions of the Apex Court order dated 22.4.2009 and Government of India guidelines dated 24.2.2009.
(10) To attract Section 270 of IPC, prosecution has failed to even allege malignant act committed by the petitioner so as to spread infectious disease. (11) The ingredients of offences underSection 420 and 120B of IPC are not made out.
(12) If there is any breach of contract terms, one has to resort to civil remedy and not to launch criminal prosecution.
12. The respondent Lokayuktha has filed objections contending that:
(1) In the investigation and final report it is stated that food was prepared using substandard material and contains Lead chemical, Staphylococcus aureus, which are dangerous to human life.
(2) It is stated that an official favour has been shown by the then Director, DWCD resulting in loss to the exchequer.
(3) That the petitioners have violated terms of the agreement and joined hands with officers of the department for supply of substandard food and caused loss to the state exchequer and thereby committed offences u/s 120B, 270 and 420 IPC. (4) That no prejudice is caused to the petitioners on account of any minor lapses in the investigation. (5) The respondents also justified the preliminary enquiry prior to registration of FIR and in this regard placed reliance on the decision of the Apex Court in AIR 1964 SC 221 (State of UP vs., Bhagwant Kishore Joshi). If there is any irregularity during the course of investigation the same has to be tested on the parameters specified in Section 460 and 461 of Cr P C at the time of trial.
(6) It is contended that Lalit Kumari case is applicable only prospectively.
(7) The respondent justified the proceedings initiated against non-public servants, the petitioners, by invoking Section 120B IPC.
(8) As against the contention relating to exclusive jurisdiction of Food Safety and Standards Act, 2006, the respondent sought to justify invoking Section 270 IPC contending that Section 270 IPC continues to be in statute and not repealed under FSSA. Since the proceedings are not initiated under FSSA, the procedure therein need not be followed and hence they are justified in obtaining three reports from different labs.
(9) The respondent has stated that proceedings initiated under P C Act are protected underSection 28 of the P.C. Act and therefore they are justified in initiating the proceedings under P C Act.
(10) There is no legal bar to investigate the case by the very officer who had registered the case referring to the citation in 2015 AIR SCW 1143.
(11) This Court has no power or jurisdiction to decide question of prejudice due to alleged lapses in the investigation.
13. The facts and the grounds urged in W P Nos.2172-
73/2015 are more or less one and the same except elaborating the contentions that are raised in W P Nos.6225-26/2014. It is contended that under FSSA, a special machinery is provided for launching prosecution with the previous permission of the Commissioner of Food Safety, which is not followed. Forwarding the report to the Government without the sanction of the Food Safety Commissioner is bad in law. It is further contended that a special law has been enacted relating to food safety and therefore prosecution can only be launched by that authority alone. While collecting and sending the samples, the definite procedure as contemplated in FSSA has not been followed. Under Section 15 of Lokayukta Act, it is open to Lokayuktha to take assistance either from the State Government or Central Government or any other Agency, which ought to have been availed by resorting to procedure prescribed under FSSA. The certificate issued by Prestine Laboratory cannot be acted upon as the said laboratory is not the authorized one and it is a private one.
14. Coming to Criminal Petition Nos.7997 & 815/2013 are concerned, the facts in Crl.P No.7997/2013 are that petitioner joined IAS service in 2002 and worked in various capacities and later she was posted as Director of Women and Child Development when anonymous complaint was lodged by staff that she has conspired with Christie Fried Grams Industries and indulged in corruption.
15. In Crl. P No.815/2013 the petitioner joined the services on 13.4.1982 as Child Development Project Officer in the Department of Health and Family Welfare. Subsequently, in the year 2001 and 2006, she was promoted to the post of Deputy Director and Joint Director. When she was working as Joint Director along with petitioner in Crl.P No.7997/2013, anonymous complaint was lodged by staff that petitioner in the said petition has conspired with Christie Fried Grams Industries and indulged in corruption.
16. Similar grounds that are raised in the writ petitions, are raised by the petitioners in Crl.P No.7997/2013 & 815/2013. It is contended that investigation is conducted without registering the FIR, allegations made in the FIR do not constitute the alleged offences. There is neither allegation of demand nor petitioners have received or accepted the illegal gratification. The respondent police have no jurisdiction or authority under law sou motu to investigate any alleged offences under P C Act. Thus there is abuse of process of law.
17. The respondent in Crl.P No.7997/2013 has filed objections stating that certain vague allegations were received against the petitioner, as it did not disclose cognizable offence, however, it was further decided to make discrete preliminary enquiry regarding information, accordingly the Superintendent of Police on 11.10.2010 forwarded the same to the Deputy Superintendent of Police, for further enquiry and submit a report. The Dy. S.P after enquiry submitted a report on 30.8.2011 that petitioner's husband though not a public servant was involved in corrupt practices taking advantage of his wife's position and at that point of time, there was no credible information regarding commission of cognizable offence, it was kept pending. Based on the preliminary enquiry report, Crime No.20/2012 was registered against the petitioner and others. Thereafter search warrant was obtained for seizure of incriminating documents, Mahazars were drawn and found incriminating documents in various offices and also food samples were seized from Anganawadis. During search and seizure the respondent found, the petitioner amassed wealth disproportionate to her known source of income.
18. The evidence collected during investigation in Crime No.20/2012 indicated that the petitioner has shown official favours in favour of M/s.Christy Fried Grams Industry in spite of violation of agreement terms of contract and also not initiating action against them for supply of substandard food materials. It is contended that discrete enquiry is permitted by the Apex Court and it does not involve collection of evidence and also petitioners have to show that such procedure has prejudiced their cause. Based on the pronouncement of this Court and also Apex Court the Lokayukta Police are empowered suo motu to register a case if the information discloses commission of a cognizable offence.
19. The petitioner in Crl.P No.7997/2013 is also the petitioner in Crl.P No.7996/2013. The facts of the case in Criminal Petition No.7996/2013 are that based on an anonymous complaint on 5.10.2010 the Superintendent of Police forwarded the said complaint to the Deputy Superintendent of Police and directed him to conduct enquiry and submit report on 11.10.2010. The Deputy Superintendent of Police without registering FIR submitted a report on 30.01.2011 alleging that the petitioner has committed offence under Section 13(1)(e) of the Prevention of Corruption Act. The grounds urged in this petition are similar to that of W P No.6225- 26/2014 so far as it relates to investigation and preliminary enquiry without registering the FIR and search warrant is vitiated for the fact that no case of disproportionate asset was registered prior to suchsearch and mahazar drawn on 9.3.2012. It is further contended that the Lokayuktha police suo motu are not empowered to investigate the alleged offences under Section 13(1)(e) of P C Act. There are no reasons assigned for entrusting the investigation to Inspector of Police for the offences under Section 13(1)(e) of P C Act.
20. The respondent has filed objections contending that search and seizure was conducted in Crime No.20/2015, thereby the respondent came to know that the petitioner has amassed wealth disproportionate to her known source of income. Source report was submitted to S.P. City Division, Karnataka Lokayukta on 24.3.2012 and on the basis of source report S P City Division, authorized Deputy Superintendent of Police to register the case and investigate on 26.3.2012. Hence the claim of the petitioner that the registration of FIR after investigation is not correct. Under Section 157 Cr P C the police attached to Karnataka Lokayukta are empowered to investigate the offence on any information received or otherwise. The Dy. S P has submitted a source report suspecting commission of an offence under Section 13(1)(e) of P C Act. Hence Superintendent of Police has passed a written order permitting the registration of Crime. The respondent contends that Dy.S.P was authorized to investigate the offence under Section 13(1)(e) of P C Act and not the Police Inspector as contended by the petitioner. Hence there is no illegality committed.
21. I have heard the learned Senior counsel for the petitioners in W P No.2172-73/2015 and learned counsel in W P Nos.6225-26/2014 for the petitioners and learned counsel for petitioners in Crl. P Nos.7996 & 815/2013 and Crl.P No.7997/2013, learned counsel for Lokayuktha, learned H C G P for the government and perused the records.
22. The points that arise for consideration are that:
(1) Whether the investigation and preliminary enquiry prior to registration of FIR is permissible in law? And if not what is the effect?
(2) Whether in the absence of alleging offence under Section 7 & 11 of Prevention of Corruption Act, non-public servants (petitioners in Writ Petitions), can be prosecuted?
(3) Whether the Lokayuktha Police is empowered to initiate proceedings and investigate in respect of food related offences, when under Food Safety and Standards Act, 2006, a separate authority and complete mechanism is provided which has the exclusive jurisdiction to deal with it?
(4) Search warrant issued and seizure made based on that is vitiated thereby vitiating the entire proceedings as contended by the petitioners?
(5) Whether the petitioners have made out a case for quashing the proceedings?
23. My answer to the above points are in favour of the petitioners for the following reasons: Point No.1. Whether the investigation and preliminary enquiry prior to registration of FIR is permissible in law? And if not what is the effect?
24. It is not disputed by the respondent prosecution that in the present case investigation has taken place prior to registration of F.I.R. but learned counsel for Lokayukta claims that it is only a discrete enquiry.
25. An anonymous complaint was filed against the Director of Women and Child Development Department on 5.10.2010. The Superintendent of Police, Lokayuktha, Bangalore City Division entrusted the matter to Smt.H R Radhamani, Dy. S.P for investigation. Accordingly, Smt.Radhamani investigated the matter, and reported vide report dated 30.1.2011 that husband of Smt.Shamala Iqbal, Director of Women and Child Development Department had misused her name and interfered in the work of the department and indulged in corruption. Thereafter Sri Anil Kumar, Inspector of Lokayuktha took over the investigation and submitted his report dated 9.2.2012 to the effect that contents of the complaint are true and to ascertain the further particulars and collect information he listed out as many as 10 places to be raided and the persons named therein.
26. On 7.3.2012 statement of Mrs.Priya Udupi was recorded. The learned counsel for Lokayukta sought to contend initially that it is only a typographical mistake, actually her statement was recorded on 7.3.2013. In the final report dated 2.3.2013, there is a reference with regard to statement of Mrs.Priya Udupi, which falsifies the initial contention of the Lokayukta that it was recorded on 7.3.2013. By way of memo dated 8.9.2015 filed by the prosecution, it is sought to contend that her statement was recorded on 21.3.2012 basing the same on case diary extract. Statement of Mrs.Priya Udupi is produced along with the application filed by the petitioners in the writ petitions on 9.9.2015. It clearly indicates the date as 7.3.2012. Therefore, it cannot be concluded that her statement was recorded on 21.3.2012 on the basis of extract of case diary.
27. Mrs.Priya Udupi was the earlier employee of Christy Fried Gram Industry and she was dismissed from service. Based on the above materials the FIR came to be registered on 8.3.2012 before Karnataka Lokayuktha Police, Bangalore. There is about 18 months' investigation prior to registration of F.I.R.
28. It is true, Lokayuktha has got suo motto power under Section 9(3) of Karnataka Lokayukta Act to investigate a matter on any complaint or on any information. Rule 5(3) of Karnataka Lokayukta Act specifies, all complaints, even if it is not submitted in the prescribed format shall be placed before Lokayukta or Upa Lokayukta as the case may be. In the instant case, no such procedure is adopted, instead, the Lokayukta Police themselves assumed jurisdiction and started enquiry against the above legal provisions.
29. It is the contention of the Lokayukta, they had conducted discrete preliminary enquiry to ascertain the truth. Prior to the pronouncement of judgment in Lalita Kumari vs., Government of U P & others, (2014) 2 SCC 1, there is neither any provision under Code of Criminal Procedure nor any settled law providing for conducting preliminary enquiry. However, after the pronouncement in the above case, preliminary enquiry can be conducted not exceeding 7 days. In this regard, reliance is placed on the decision in State of UP vs., Bhagwant Kishore Joshi, AIR 1964 SC 221. In para 8 of the judgment itself, the investigation stated to consist the following steps:
i. Proceeding to the spot, ii. Ascertainment of the facts and circumstances of the case, iii. Discovery and arrest of the suspected offender.
iv. Collection of evidence.
v. Formation of opinion.
In the instant case, Dy. S.P Radhamani conducted the investigation, made note, collected documents and submitted report and further investigation was taken over by Mr.Anilkumar who seized the documents from DWCD and recorded the statement of Ms.Priya Udupi, which does not fall under the definition of preliminary enquiry. The preliminary enquiry is to be without questioning any witness and without making any notes from the documents seized.
30. The learned counsel for the petitioners placed reliance on decision in Rajeevan vs., State of Kerala reported in CDJ 2003 SC 323. The relevant portion in Para-12 of the judgment is to the following effect: `Delay in lodging FIR quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introducing of coloured version exaggerated account, concocted story as a result of deliberation and consultation."
31. The petitioners in the writ petitions placed reliance on decision in Lalita Kumari vs., State of U.P. & others (2014) 2 SCC 1 and contended that registration of F.I.R before conducting investigation is mandatory. The Hon'ble Supreme Court dealt with a direct question in the aforesaid decision that, whether a police officer is bound to register a first information report upon receiving any information relating to commission of a cognizable offence under Section 154 of Code of Criminal Procedure, 1973 or the police officer has the power to conduct a `preliminary inquiry' in order to test the veracity of such information before registering the same. The Supreme Court took note of observation of the Committee on Reforms of Criminal Justice System in Para-102 which is as follows:
7.19.1 According to the Section 154 of the Code of Criminal Procedure the officer incharge of the police station is mandated to register every information oral or written relating to the commission of cognizable offence. Non registration of cases is a serious complaint against the police. Besides, the complainant gets an opportunity to consult his friends, relatives and sometimes even lawyers and often tend to exaggerate the crime and implicate innocent persons. This eventually has the adverse effect at the trial. The information should be reduced in writing by the SH, if given orally, without any loss of time so that the first version of the alleged crime comes on record.
7.20.11 It has come to the notice of the Committee that even in cognizable cases quite often the police officers do not entertain the complaint and send the complainant away saying that the offence is not cognizable. Sometimes, the police twist facts to bring the case within the cognizable category even though it is non cognizable, due to political or other pressures or corruption. This menace can be stopped by making it obligatory on the police officer to register every complaint received by him. Breach of this duty should become an offence punishable in law to prevent misuse of the power by the police officer.
The Hon'ble Supreme Court has held in Para-120.7 that while ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. It is further held in Para-120.8 that since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, Supreme Court directed that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected.
32. The learned counsel for the petitioners placed reliance on the decision in L Shankar Murthy & others vs., State by Lokayuktha Police, reported in 2012(5) Kar.L.J. 545 where this Court has dealt with the effect of investigation prior to registration therein. Paras-33, 35, 45 and 46 read as follows:
"33. The scheme of Cr P C also makes it clear that, Section 157 of Cr PC gives power to the police officer to take up investigation only after sending a report to the Magistrate, and power to take cognizance of such offence where the officer concerned, from the information received or otherwise, has reason to suspect the commission of an offence which he is empowered to investigate under Section 156 of Cr P C, he shall follow the requirements of Section 157 before embarking upon the investigation. It is, therefore, clear from the aforesaid provisions of Cr P C that the police officer concerned cannot proceed with the investigation without first registering the case upon the information received by him.
35. In the light of the foresaid position in the law laid down by the Apex Court in particular in the aforementioned cases, the entire proceeding leading to conducting the seizure panchanama even without registering the cases as required under Section 154 of the Cr.P.C. is illegal, contrary to law and is in violation of the mandatory provisions of the Cr.P.C. and the act on the part of the Police Officer concerned is nothing but an act which could be termed as abuse of the process of law.
45. ....as of now, the settled position in law is registering the case upon the information received is sine qua non before proceeding to take up the investigation.
46. Thus, the entire procedure followed by the concerned Police Officer is an abuse of the process of law and, therefore, I have no hesitation in agreeing with the contentions put forward by the learned Counsel for the petitioners that these cases are fit enough to be brought within the rarest of rare cases and in order to prevent abuse of the process of law and to meet the ends of justice, exercise of inherent power conferred under Section 482 of the Cr.P.C., therefore, becomes imperative and inevitable".
33. It is to be mentioned here that the aforesaid Shankaramoorthy case was challenged by the Lokayuktha police before the Hon'ble Supreme Court and the Apex court declined to interfere.
34. The petitioners further placed reliance on the decision in Girishchandra & another v. State of Lokayuktha Police, Yadgir, reported in 2013(5) Kar.L.J. 470 (DB) and the Hon'ble Division Bench of this Court has held as follows:
"In a situation where an offence is committed right in the presence of a Police Officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The Police Officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible".
35. The learned counsel for Lokayukta has submitted that the nature of enquiry before registration of FIR was discrete in nature and without the knowledge of the petitioners thereby they are not prejudiced. Relying upon the decision in State of M.P & others v. Shri Ram Singh, reported in AIR 2000 SC 870 it is submitted that every illegality or irregularity in investigation does not vitiate the entire proceedings. The point involved in the above citation was the order of the Superintendent of Police was in typed pro forma, thereby whether there was application of mind by the Superintendent of Police in authorizing the junior officer to investigate. The said decision did not deal with a situation where investigation is done prior to registration of FIR and hence has no relevance to the point in issue.
36. The learned counsel for Lokayukta tried to take shelter under the provisions of Section 460 &461 of the Code of Criminal Procedure and submitted that any violation of provisions of Section 154 of Cr P C do not make entire proceedings illegal as Section 154 is not included in Section 461 and 460 Cr P C. It is to be mentioned here that Section 460 Cr P C provides that if any Magistrate not empowered to do an act, does it in good faith, his proceedings shall not be set aside merely on the ground that he was not empowered. Section 461 of the Code provides that if any Magistrate not being empowered by law to do certain acts as detailed therein does any of the acts, his proceedings shall be void. Therefore, the prosecution cannot take shelter under the said provisions to save the present proceedings.
37. Further the learned counsel for Lokayukta placed reliance on the decision in Niranjan Singh & others v. State of U.P. reported in AIR 1957 SC 142 to submit that Code of Criminal Procedure does not anywhere specifically say that a mistake committed by a police officer during the course of investigation cannot be an illegality or irregularity. The point involved there was failure to submit a case diary by a police officer whereas the present case relates to investigation without registration of FIR for about 18 months.
38. The learned counsel for Lokayukta next submits that one or two steps in investigation commenced earlier to registration of FIR and the materials collected, it is for the trial court to decide value of the materials and it cannot be a ground for acquittal and relied upon decision inState of U.P. v. Bhagwant Kishore Joshi, reported in AIR 1964 SC 221. There the Sub- Inspector ascertained the truth of the complaint , which was much short of investigation and therefore it was viewed that the provisions of Section 5-A of the P C Act were not violated.
39. Further the learned counsel for Lokayukta placed reliance on AIR 2014 SC 1106 (Umesh Kumar v. State of Andhra Pradesh) to advance the contention that the documents illegally obtained could be relied upon and it is for the trial court to examine the admissibility or otherwise of the said material. The said decision has no application to the facts of the present case.
40. From the above, it is clear that the prosecution is not justified in conducting investigation before registration of FIR in the guise of preliminary enquiry and investigation for a period of about 18 months is beyond the 7 days period said to be permissible as laid down in Lalita Kumari's case referred to supra.
41. FIR in a criminal case is a vital and valuable piece of evidence though not a substantive piece of material. The object of registering FIR in respect of commission of an offence is to obtain early information regarding the nature of crime and names of the culprits and part played by them as well as names of the eye-witnesses present at the time of incident. Delay in lodging the FIR, loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Promptly lodged FIR reflects first hand information as to what has happened, and who was responsible for such an offence.
42. In the circumstances, the Lokayukta police have committed grave error of law in proceeding to conduct a preliminary enquiry for a substantial period of about 18 months before registering the FIR and such a preliminary enquiry without registering the FIR is impermissible in law vitiating the entire proceedings and it is abuse of process of the Court. Accordingly, the Point No.1 is answered.
Point No.2: Whether in the absence of alleging offence under Section 7 & 11 of Prevention of Corruption Act, non-public servants (petitioners in Writ Petitions), can be prosecuted?
43. The petitioner No.1 in the writ petitions is a proprietor and the second petitioner is its Manager. They are not the public servants. There is no offence alleged against the petitioners in the writ petitions either under Section 7 or 11 of the Prevention of Corruption Act. The petitioners are not alleged to have either abetted or induced the official petitioners to take illegal gratification. The allegation is more of violation of terms of the contract by the petitioners in supplying the substandard materials. For violation of any terms of the contract it does not render them for criminal prosecution rather there lies a civil remedy.
44. The investigation to be conducted by the Lokayukta and the Upa Lokayukta is in respect of a complaint against a public servant only. The word `public servant' has been defined under the Karnataka Lokayukta Act, 1984 under Section 2(12). The jurisdiction of Lokayukta and Upalokayukta do not extend beyond what is specifically contained in Section 7 of the Act. They have no jurisdiction to entertain a complaint against a person other than a public servant as defined under the Act. This ratio is laid down in the decision of our High Court in Sri M A Parthasarathy vs., The Special Deputy Commissioner, Bangalore District & others, reported in ILR 2009 KAR 1940.
45. The learned counsel for Lokayukta has relied upon decision in Devendra & others Vs., State reported in 2009(7) SCC 495 and contended that if the allegations disclose a civil dispute, the same itself may not be a ground to quash the proceedings. The petitioners are only a capacity builder supplying semi processed material (blend food) to MSPTCs. It is only MSPTCs. who produce the final product and send it to the Taluk CDPOs and from there it goes to Anganawadis. The very basis on which the allegation is made as against the petitioners in the writ petitions are unfounded and cannot be sustained.
46. Under the contractual obligation if the dispute is predominantly civil in nature, even if there is allegation of criminal nature, invoking criminal proceedings is not maintainable. Our High Court in India Cements Ltd., vs., K P Chandrasekar Reddy, reported in LAWS (KAR)-1988-9-79 has observed as follows:
"Though a case of breach of trust may be both the civil wrong and a criminal offence but there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence."
Therefore, for breach of contract for supply of substandard food amounts only to civil in nature for which arbitration proceedings in ICA/Ban 1 of 2013 for determining the illegalities of either side is pending. Hence the prosecution launched against the petitioners in the writ petitions is abuse of process of law, cannot be sustained.
47. As per Section 4(3) of Prevention of Corruption Act, the Special Judge is empowered to try any offence under P.C Act. Section 17 of P.C. Act permits the police official to investigate the offences punishable only under P C Act. For investigating other offences i.e., IPC offences, the police officials are mandated to obtain permission from the Special Judge. This procedure has not been followed in this case which clearly establishes that without the orders of the Special Judge, the police officers investigated the other offences, which is illegal and gross violation of law. The allegation either in the anonymous complaint or in the statement by Smt. Priya Udupi or the final report do not make out any malignant act on the part of the petitioners so as to attract any of the offences alleged against them. Therefore, the prosecution launched against the petitioners in the writ petitions is not sustainable in law.
Point No.3: Whether the Lokayuktha Police is empowered to initiate proceedings and investigate in respect of food related offences, when under Food Safety and Standards Act, a separate authority and complete mechanism is provided which has the exclusive jurisdiction to deal with it?
48. For initiation of any proceedings regarding manufacture and supply of food to general public are regulated under Food Safety and Standards Act, 2006, hereinafter referred to as `the FSSA' for short. The Government of India has issued guidelines dated 24.2.2009 and based on the same, the Apex Court issued direction dated 22.4.2009. A complete mechanism is provided under the FSSA to deal with cases concerned with food related laws. Section 29 of the FSSA specifies the authorities responsible for enforcement of the Act. Section 30 of the Act specifies the Commissioner of Food Safety as the competent authority to implement the provisions of the Act effectively. Section 42 of the said Act provides procedure for launching prosecution, which reads as follows:
42. Procedure for launching prosecution.
(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst of analysis.
(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.
(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit, decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,-
(a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or
(b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a court of ordinary jurisdiction.
(5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to the purchaser if the sample was taken under section 40.
49. Section 47 of FSSA deals with sampling and analysis of food articles, which reads as follows: "47. Sampling and analysis.- (1) When a Food Safety Officer takes a sample of food for analysis, he shall-
(a) give notice in writing of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed.
(b) except in special cases as may be provided by rules made under this Act, divide the sample into four parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed by the Central Government.
(c) ......
50. Section 89 of the FSS Act provides that FSSA overrides other laws related to food articles. The same reads as follows:
"89. Overriding effect of this Act over all other food related laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
51. It is contended by the petitioners that the action of the respondent police in not verifying the food samples in accordance with the standards specified under FSS Act, the seizure of food articles in derogation of the procedure prescribed is a clear violation of the law and the prosecution launched against the petitioners is not in accordance with law and it has greatly prejudiced the case of the petitioners.
52. The Lokayuktha Act, 1984 gave the following consequences to take effect:
(a) Exclusive investigation agency is established to investigate any offence against a public servant including under P.C. Act.
(b) The procedure prescribed under Lokayuktha Act for investigation alone is required to be followed.
(c) Three modes of investigation under the Lokayuktha Act, i. A reference by Government u/s 7 of Lokayuktha Act.
ii. A written complaint u/s 9 of Lokayuktha Act. iii. Exercise of suo motu power by Lokayuktha or Upa Lokayuktha to launch criminal proceeding against a public servant.
53. It is contended by the petitioners that the procedure prescribed under Lokayuktha Act for investigation would prevail over Chapter XII of Cr P C in view of provisions of Section 4(2) and 5 of Cr P C. In Ajmer Singh Etc. Etc vs., Union of India & Ors (1987) 3 SCC 340 it is held that effect of Section 5 of the Code is clearly to exclude the applicability of the Code in respect of proceedings under any special or local law or any special jurisdiction or form of procedure prescribed by any other law. Hence the Lokayuktha police cannot create a parallel investigation agency and launch criminal prosecution against public servant in derogation of procedure prescribed under Lokayuktha Act.
54. The learned counsel for Lokayuktha submits that the matter is covered by judgment of Apex Court in Rangasamy case, Yunus Zia Vs., State of Karnataka & Another reported in 2015 AIR SCW 2478 and Mahadevappa vs., Lokayuktha (Crl.P No.8769/2008). On the other hand, the learned counsel for the petitioners submit that effect of Section 4(2) and Section 5 of Cr P C and doctrine of occupied field and implied repeal were not the subject matter of consideration in Rangasamy case, Yunus Zia case. A comprehensive legislation is made by the Parliament dealing with the food laws, the field is occupied by the said legislation. FSSA being a special law would prevail over the general law. The special procedure prescribed under the FSSA is required to be followed having regard to Section 4 & 5 of Cr P C. The pith and substance of the issue would be the procedure to be followed for determining the standard of food.
55. It is further contended that the respondent police have initiated proceedings with a wild allegation of supply of substandard food under the ICDS Scheme, is an abuse of process of law. The prosecution has failed to understand and appreciate the lab report obtained from three laboratories. Content of lead far below the permitted limit is considered as a poisonous substance or metal contamination which is alleged to be dangerous to human consumption. The FSSA Regulation 2011 has not been taken into consideration by the prosecution. Lead content in some of the food articles tested by the laboratory is 0.005 which is stated to be far below the permissible limit of 2.5. If the prosecution had taken into consideration the specification prescribed under the FSSA and the regulations thereon, the prosecution would not have committed mistake in launching the prosecution against the petitioners which has also resulted in wrongful publicity leading to termination of contract of the petitioners in the writ petition. The criminal proceedings is on the wrong impression as if the petitioners have supplied poisonous food materials to the beneficiaries in spite of specific report of the lab that it was fit for human consumption. The learned counsel for Lokayukta seriously disputes the contents of the certificates produced along with the writ petition and alleges that they are manipulated and the correction made therein is not authenticated by affixing signature. Be that as it may, the fact remains that the prosecution has failed to follow the procedure established by law and thus the criminal prosecution launched by them is nothing but mala fide exercise of power.
56. It is also contended, the respondent was not equipped to handle food articles and did not have power, authority, jurisdiction to initiate any prosecution with respect to the food. Hence the entire action of the respondent is arbitrary, illegal and mala fide and liable to be quashed.
57. The learned counsel for Lokayukta has contended that respondent police have not registered case nor investigated the case for the offences under FSSA and hence question of procedure therein being followed would not arise. Under repealing section of FSSA, the provisions of Indian Penal Code are not excluded from applicability alike Chapter IX of IPC was amended by deleting provisions relating to illegal gratification and abuse of official powers after enactment of P.C. Act. Hence it is the submission, respondent police are empowered to investigate offences under the P C Act 1988 coupled with offences under the other laws. However, the learned counsel for Lokayukta concedes that if the special law governs the particular procedure for particular kind of offences then special procedure to be adopted.
58. The learned counsel for the petitioners placed reliance on the decision in Prof. S N Hegde & another vs., The Lokayuktha, Bangalore & others, ILR 2004 KAR 3892 to contend that when the Lokayuktha did not have the power or jurisdiction to take any action against the Vice Chancellor in view of specific provision being made in the University Act, the Lokayukta ought to have refrained from proceeding further for want of jurisdiction. Having regard to the scope of theUniversities Act and the object behind the Lokayukta Act, it is clear that the Lokayukta has no jurisdiction to investigate a complaint against the Vice Chancellor under the provisions of the Karnataka Lokayukta Act.
59. The learned Senior Counsel for the petitioners in W P Nos.2172-73/2015 has placed reliance on the following authorities:
(a) AIR 1981 SC 1387 para-17 (Chitumal vs., State of M.P) to the effect "Public analyst stood superseded by Certificate of Director, Central Food Laboratory. On the ground of tampering of seal of containers of sample is not accepted by the Supreme Court".
(b) AIR 1999 SC 738 Para-14 (Calcutta Municipal Corporation Vs., PavanKumar Saraf) to the effect "Certificate of the Director of Central Food Laboratory is a conclusive proof".
(c) AIR 1967 SC 970 Para-7 (MCD vs., Ghisa Ram) to the effect "denial of a sample is a very valuable right and seriously prejudiced, no conviction can be rested, if sample is not given and the denial of right to examine a sample is denied".
(d) 2009(3) Crimes 150 (State of Gujarat vs., Pradip Kumar Vrajlal Kandoi & another) to the effect "non- forwarding of a report after examination of the sample and non-service of a notice is a fatal to the prosecution case".
(e) 2011(1) Crimes 687 (Bhagawati Prasad Pant Vs., State of Uttaranchal) to the effect "The Food Inspector has not followed the procedure of seizing and sampling food articles, even test carried out under the Act is not permissible. The delay of one month in getting the report is also fatal. Thus, illegality in seizing and sampling food articles may vitiate prosecution case.
(f) 2012(2) Crimes 643 to the effect "The bottles were not cleaned vitiates the prosecution case".
(g) 2012(2) Crimes 604, (Shanti Kumar Jain vs.,State of Bihar & another) to the effect "The accused may file a petition before the court within ten days of receipt of the report showing his intention to challenge the report of public analyst so that sample be examined by the Central analyst. If such a mandatory provision is denied, the entire conviction is bad."
(h) 2009(1) Crimes 13 (AP) (Sri Harsh Agarwal Vs., State of Andhra Pradesh) to the effect "notice forwarding the public analyst report to the accused is not a mere ritual but a statutory requirement to be mandatorily observed and not only dispatch of the report but even its receipt by the accused has to be proved by the prosecution.
(i) 2007(4) Crimes 688 (State of Gujarat vs., Naro Hambhai Chaganalal Thakkar & others), to the effect "Duty is cast upon the prosecution not only to comply with the mandatory provision of law by using clean and dry bottles for storing the sample but also to satisfy the court by leading evidence that the bottles used were clean and dry."
(j) 2013(2) Crimes 640 (Guj) to the effect "Getting sample tested from Central Food Laboratory is a valuable legal right of accused".
(k) AIR 1971 SC 815 (MCD Vs., Shivshanker) to the effect, Food Adulteration deals with standards of food, where food prescribe ed standards in manufacturing the food and the sale of the said food contrary to the prescribed standards, then, only the Food Adulteration Act is applicable.
60. The Central Government by means of an order dated 24.02.2009 at Para-8 clearly says that periodical checks can only be under the Food Adulteration Act with an assistance of State Food Nutrition Board, which has been approved by the Hon'ble Supreme Court on 22.4.2009. The police checks and investigation would be contrary to the order of the Hon'ble Supreme Court and directions of the Central Government, where the Central Government is very clear that the Standards of a Scheme under the ICDS scheme is completely governed by the provisions ofFood Adulteration Act and with the assistance of the Food Nutrition Board. The Lokayukta has no power to investigate and assume the jurisdiction in respect of the subject control under the Central enactments in view of the judgment of the Supreme Court in AIR 1983 SC 150 Para-21 where the Central law prevails over the State Law and the Lokayukta Act is held to be a general statute and Food Safety Act is a special statute in AIR 1954 SC 752.
61. In 2011(2) Crimes 250 (All) (D.B) and 2011(4) Crimes 110 (All), it is held that in respect of a subject falls under the Food Safety Act, no charge sheet or FIR can be filed under the IPC. Para-26 of the said judgment reads as follows:
"26. It is not the case of the State Counsel that the carbonated drinks or juice based beverages are not intended for human consumption or that they are not substances for the purposes of section 3(zw). In PFA Act, standards were prescribed for various food articles in the Appendix B. In Appendix-B, carbonated water is defined in Entry A.01.01. By virtue of section 98, the rules including Appendix B has been temporarily transported to FSSA till the regulations under the FSSA are notified. Therefore, we are unable to agree with the arguments advanced on behalf of the State that theprovisions of the FSSA are not applicable in the instant case.
In view of the aforesaid crystal clear legal proposition and particular provisions under the FSSA we are in agreement with the arguments advanced by the petitioner's Counsel that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide notification dated 29th July, 2010, the authorities can take action only under the FSSA as it postulates an overriding effects over all other food related law including the PFA Act. In view of the specific provisions under the FSSA, the offences relating to adulteration of food that are governed under the FSSA after July 29, 2010 are to be treated as per the procedures to be followed for drawing and analysis of samples as have been provided for. The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against an alleged offence of food adulteration, it is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the FSSA and, therefore, the police have no authority or jurisdiction to investigate the matter under FSSA. Section 42 empowers the Food Safety Officer for inspection of food business, drawing samples and sending them to Food Analyst for analysis. The Designated Officer, after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution. Therefore invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned Government Order is wholly unjustified and nonest. furthermore, it appears that the impugned Government Order has been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction."
62. Section 4(1) of Cr P C provides that "All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". Section 4(2) of Cr P C says "All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying to otherwise dealing with such offences. Section 5 of Cr P C says "Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form or procedure prescribed by any other law for the time being in force. Therefore, it is clear, by invoking IPC for supply of alleged substandard food, it is mandated to follow the special procedure laid down under FSSA. Without following the prescribed procedure test of samples as per the whims and fancies in a private unrecognized laboratory even prior to the FIR greatly prejudiced the petitioners. Even if IPC is invoked the special procedure laid down under FSSA for testing and declaring the product as substandard should have been followed. If that had been followed, the petitioners would have got the right to contest the test reports by way of testing the counter samples at the referral laboratory as per Section 43(2) of FSSA and this opportunity is denied to the petitioners. The samples tested by the prosecution have not pointed out any deviation in standards. Hence framing of charges for the supply of substandard foods u/s 270IPC allegedly spreading infectious disease is not made out. When the main allegation of supply of substandard food is not made out, charges u/s 120B and 420 IPC for the alleged supply of substandard food cannot sustain against the petitioners.
63. In the instant case, an anonymous complaint was made to Lokayuktha. The respondent police attached to Lokayukta have usurped the power of Lokayukta and initiated proceedings. Thus the petitioners are denied an opportunity of being heard under Section 9 of Karnataka Lokayukta Act in violation of Article 14 & 21 of the Constitution of India.
64. There is no compelling reason for Lokayukta or Lokayukta Police to take each and every complaint and launch a criminal prosecution. The investigating agency must avoid entirely any kind of extraneous influence, and investigation must be carried out with equal alacrity and fairness irrespective of the status of the accused or the complainant, as a tainted investigation definitely leads to miscarriage of criminal justice, and thus deprives a man of his fundamental rights guaranteed under Article 21 of the Constitution. Thus, every investigation must be judicious, fair, transparent and expeditious to ensure compliance with the rules of law, as is required under Articles 19, 20 & 21 of the Constitution. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution. A victim of a crime, thus, is equally entitled to a fair investigation.
65. The word personal liberty under Article 21 of the Constitution is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per the procedure established by law.
66. In AIR 1992 SC 81 (R S Raghunath Vs., State of Karnataka & another), it held, where the general Rules were in force, the special rules were already holding the field, the special Rules being law, the application of the general Rules is excluded to the extent the field is occupied by the special rules.
67. In (2014) 8 SCC 319 (Commercial Tax Officer, Rajasthan vs., Binani Cements Ltd., & Another), it is held that "alternatively it can be said that where a statute contains both general provision as well specific provision, the later must prevail. It is well established that when a general law and a special law deal with same aspect dealt with by the general law are in question, the Rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, has impliedly repealed. This principle finds its origins in the Latin Maxim, generelia specialibus non derogant, i.e., general law yields to special law.
68. It is further held in (2009) 7 SCC 526 (Jeevan Kumar Raut & another vs., Centrla Bureau of Investigation) that "It is well settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed".
69. In the circumstances, the contention of the learned counsel for Lokayukta that since the offences under FSSA are not invoked, following the procedure under the said Act is not required cannot be sustained as it is the bounden duty of the prosecution to follow the procedure established by law. In that view of the matter, the case registered for the food related offences cannot be said to be after following the procedure established by law as enshrined under Article 21 of the Constitution of India. Therefore, the Lokayukta Police have committed an error of law in proceeding to investigate the food related offences and without following the procedure prescribed by FSSA, which is without jurisdiction and authority of law. Point No.4: Whether search warrant issued and seizure made based on that is vitiated thereby vitiates the entire proceedings as contended by the petitioners?
70. The prosecution made an application for issue of search warrant along with FIR. The request for issue of search warrant was not only against the petitioners' premises but also in respect of CDPO godowns, Anganwadis and other places. There were no material particulars with respect to those 3 places or material particulars warranting the issue of search warrant against the petitioners.
71. In the FIR it is stated about commission of offence u/s 12, 13(1)(d), 13(2) of the Prevention of Corruption Act. The FIR was placed before the learned Magistrate in a sealed cover and the search warrant was obtained in a mechanical way and without application of mind, which is evident from the record. The order sheet does not indicate the basis, reasoning and the requirement under the circumstances for issue of search warrant as required u/s 93 of Cr P C which is mandatory. The learned Magistrate opened the sealed cover containing FIR with allegations and material particulars on 17.3.2012 at 10.55 a.m. as per the endorsement, while the search warrant was issued on 8.3.2012 itself. There is no reference to the alleged substandard food said to have been prepared by the MSPTCs. Thus it is clear that the search warrant is without any basis and without application of mind by the learned Magistrate.
72. In V S Kuttan Pillai Vs., Ramakrishnan reported in AIR 1980 SC 185 the Hon'ble Supreme Court has considered the requirement of application of mind by the Magistrate before issue of search warrant.
73. The lab reports obtained from three laboratories are not against the petitioners. The prosecution story seems to have been built on the basis of lab reports and portrayed as supply of dangerous material harmful for human consumption and subjected the petitioners for criminal prosecution. The food samples are not secured from the petitioners in the writ petitions. There is no material to show that the food samples are dangerous to human consumption as per the provisions of law occupying the field.
74. If the learned Magistrate had been notified that the respondent prosecution intends to take food samples and the same are required for investigation, there would have been compliance of procedure prescribed under FSSA and principles of natural justice or learned Magistrate might not have issued the search warrant. Thus the issue of search warrant has deprived the petitioners' legitimate right of opportunity and safeguards provided under the FSSA and deprived the petitioners of their legitimate defence available under the law. Thus it is clear that issue of search warrant is contrary to Section 93 Cr P C. and search conducted thereupon has prejudicially affected the petitioners' right and defence.
75. In 2005(3) SCC 169 it is held in Para-28 as follows:
"28. In India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or not.
Therefore, the proceedings with regard to issue of search warrant is not in accordance with law. Point No.5: Whether the petitioners have made out a case for quashing the proceedings?
76. It is well settled that the power under Section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of process of the court; in such a case not quashing the proceedings would perpetuate abuse of process of the court resulting in great hardship and injustice to the accused.
77. Keeping the above principle in mind, if the case on hand is examined, here is a case where the Lokayukta Police have assumed the power and jurisdiction of Lokayukta on an anonymous complaint addressed to Lokayukta. Without placing the said complaint before Lokayukta for taking proper steps in terms of Section 9 of Karnataka Lokayukta Act, 1984 proceeded to investigate into the complaint without registering the FIR by different investigating officers and registered the FIR based on the investigation report with an inordinate delay of about 18 months. It is a matter of no controversy any more that registration of FIR is mandatory before proceeding to investigate into the truth or otherwise which mandate is not followed by the respondent police. When food related offences are regulated by FSSA, the procedure prescribed therein is not followed instead Section 270 of IPC is invoked without even alleging the malignant act on the part of the petitioners in the writ petition which probably would have resulted in causing infectious disease among the beneficiaries. The respondent police have proceeded on a wrong footing that petitioners in the writ petition are suppliers of food items but on the contrary it is only a capacity builder, supply blended materials and in turn MSPTCs. prepare the food for the beneficiaries. It is the averment in the anonymous complaint that the status of children's health and nutrition and that of adolescent girls, pregnant and lactating mothers is dismal with over 50% being anaemic and malnourished because of deficiency in food supplied to the beneficiaries and for this Christy Friedgram Industry has bought not only the Director but also the other staff employed in ICDS. The proceedings initiated suffer from lack of jurisdiction and malice.
78. The learned counsel for Lokayukta submits that after registration of FIR in Crime No.20/2012 on the residence and the office of the accused named therein, it was revealed that the petitioner therein had amassed wealth disproportionate to her known sources of income and hence separate FIR was registered in Crime No.25/2012. The investigation in Crime No.20/2012 has started even before registration of FIR and the investigation went on for a considerable length of time and it is beyond the scope of discrete enquiry and beyond the permissible period of 7 days. Such a tainted investigation and preliminary enquiry has given rise to Crime No.25/2012. Fair investigation and fair trial and transparency in the conduct of criminal prosecution are the requirements of basic rule of law. They are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 & 21 of the Constitution of India. There is no dispute that even based on the news paper information, FIR can be registered, but that is not the issue in the present case. The contention of learned counsel for Lokayukta that investigation in Crime No.25/2012 is not before registration of FIR cannot be accepted.
79. The learned counsel for petitioner in Crl.P No.7997/2013 submits that where there is a legal bar against institution or continuance of the criminal proceedings in respect of the alleged offence, the High Court should not be reluctant to exercise the inherent jurisdiction. Similarly, where the allegations in the FIR or the complaint, even if they are taken at their face value do not constitute the offence alleged or without appreciating the evidence but only merely by looking at the complaint or the FIR or the accompanying documents, the offence alleged is not disclosed, the person proceeded against in such a frivolous litigation has to be saved. In this regard, the learned counsel placed reliance on the decision in STATE OF HARYANA vs., BHAJAN LAL, reported in 1992 Supp(1) SCC 335 Para-102 and K RAMAKRISHNA & OTHERS vs., STATE OF BIHAR & ANOTHER, reported in 2000(8) SCC 547.
80. The learned counsel for petitioners relying upon Paras-
22, 35 & 39 in L Shankar Murthy & others vs., State by Lokayukta Police reported in 2012(5) Kar. L.J. 545 contends that the entire proceeding leading to conducting the seizure panchanama even without registering the cases as required under Section 154 of the Cr.P.C. is illegal, contrary to law and is in violation of the mandatory provisions of the Cr.P.C. and the act on the part of the Police Officer concerned is nothing but an act which could be termed as abuse of process of law.
......Therefore, mere mention of Section 8 are to be found in the FIRs without there being even the prima facie material to make out such an offence, therefore, cannot be given rise to take view that there is prima facie material to attract Section 8 of the Act. When the FIRs are totally silent with regard to the allegation of the nature required bySection 8, the question of there being any allegations attracting the offence underSection 8, therefore, does not arise. For the very same reason, there is no material to show that the Complaint allegations or the FIR allegations make out a case to attractSection 13(1)(d) of the PC Act.
81. It is further submitted placing reliance on NAGASHETTY V/S THE KARNATAKA LOKAYUKTHA in Criminal Petition No.7611/2010 by Order dated 23/12/2010 that the words 'accepts or obtains or agrees to accept or agrees to obtain' are interpreted to mean demand and acceptance. Therefore, the material allegation must at least prima facie show that by conduct and acts in personem, a public servant had demanded money or things as "illegal gratification" and received it. Such demand and acceptance should be as gratification to show official favour or forbearing to do any official act for showing or for bearing to show, in the exercise of his official act for showing or forbearing to show, in the exercise of his official functions, in favour of the person from whom such demand is made. None of these aspects are noticed in the action initiated by the Dy. Superintendent of Police as the genesis of investigation is on the basis of an anonymous complaint wherein there is no name of the petitioner.
82. The learned counsel for Lokayukta relying upon 2013 AIR SCW 6660 (Vinod Raghuvanshi v. Ajay Arora & others) contends that the charge sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr P C and court should not "kill a still born child". In the instant case, there is a basic infirmity in the criminal prosecution launched as against the petitioners and it is a clear abuse of process of the court which was not the situation in the above authority. Therefore, the prosecution cannot be saved relying upon the aforesaid citation.
83 Hence in order to prevent abuse of the process of law and to secure the ends of justice, exercise of inherent power conferred under Section 482 of Cr P C is imperative and inevitable.
For the aforesaid reasons, I am of the view that the petitioners are entitled to succeed. Accordingly, writ petitions and criminal petitions are allowed. The proceedings in Crime No.20/2012 & 25/2012 on the file of Respondent, so far as petitioners are concerned, are hereby quashed.
Sd/-
JUDGE akd
No comments:
Post a Comment