Full Judgment Text
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 08 DAY OF JULY, 2021
BEFORE
THE HON’BLE MR.JUSTICE G.NARENDAR
WRIT PETITION NO.3453/2021(GM-POLICE)
BETWEEN
1. THE JEWELERS’ ASSOCIATION (R)
NO.835, SRIDEV SHOPPING ARCADE
ST
1 FLOOR, NAGARTHPET
BENGALURU-560002.
REPRESENTED BY ITS PRESIDENT
SRI N VIDYA SAGAR
2. THE JEWELER’S ASSOCIATION
JUMMA MASJID ROAD
AND JAIN TEMPLE ROAD
SHIVAJI NAGAR
BENGALURU-560 051
REPRESENTED BY ITS PRESIDENT
SRI S MOHAN LAL.
3. THE BANGALORE DISTRICT JEWELERS
ASSOCIATION (R)
NO.4/1 TO 4/16
NEW NO.1 TO 17
KAPOOR ADAM SAHIB GALLI
DHARMARAYASWAMY TEMPLE ROAD
NAGARTHPET MAIN ROAD
BANGALORE -560062.
REPRESENTED BY ITS PRESIDENT
SRI LALITH BOHRA.
...PETITIONERS
(BY SRI: SANKET M YENAGI., ADVOCATE)
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AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOME AFFAIRS
VIDHANA SOUDHA
BANGALORE-560001
REPRESENTED BY THE SECRETARY
2. THE DIRECTOR GENERAL AND
INSPECTOR GENERAL OF POLICE
NO.2, NRUPATHUNGA RAOD
BANGALORE-560 001
3. THE COMMISSIONER OF POLICE
NO.2, ALI ASKAR ROAD
VASANTH NAGAR
BANGALORE CITY-560001
...RESPONDENTS
(BY SRI: VINOD KUMAR.M., AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO;
a) ISSUANCE OF WRIT OF MANDAMUS DIRECTING THE
RESPONDENTS TO STRICTLY COMPLY WITH THE
GUIDELINES ISSUED UNDER THE CIRCULAR NO.
GC/18/S.H.R.C./2007 DATED 19/02/2008 ISSUED BY
THE RESPONDENT NO.2, AT ANNEXURE-D AND THE
SOP NUMBER CRIME 3/187/2018, DATED 06/03/2019
ISSUED BY THE RESPONDENT NO.2, AT ANNEXURE-E
b) ISSUANCE OF WRIT OF MANDAMUS DIRECTING THE
RESPONDENTS TO A CONSTITUTE A SPECIAL
COMMITTEE TO OVERSEE THE COMPLAINTS
PERTAINING TO POLICE ATROCITY ON ACCOUNT OF
NON-COMPLIANCE OF THE GUIDELINES ISSUED UNDER
THE CIRCULAR NO. GC/18/S.H.R.C./2007 DATED
19/02/2008 ISSUED BY THE RESPONDENT NO.2, AT
ANNEXURE-D AND THE SOP NUMBER CRIME
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3/187/2018 DATED 06/03/2019 ISSUED BY THE
RESPONDENT NO.2, AT ANNEXURE-E
c) ISSUANCE OF WRITS OR ORDERS OR DIRECTIONS.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY
HEARING’, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and
the learned Additional Government Advocate.
2. The instant petition was initially preferred as a
Public Interest Litigation. The matter on being listed
before the Bench of the Hon’ble Chief Justice and
Companion Judge, after perusing the petition, has been
pleased to observe as under:-
“The petitioners are the Associations of
Jewelers. Therefore, the members of the
petitioners are personally interested in the subject
matter of this writ petition.
Hence, this petition cannot be treated as a
public interest litigation. Treat this petition as an
ordinary writ petition under Article 226 of the
Constitution of India and shall place the same
before the appropriate Bench.”
3. Pursuant to the said order of the PIL Bench,
the matter is listed before this Court. The petitioners
claim to be three Associations primarily representing the
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interest of Gems and Jewelry shop owners and the sum
and substance of their case is that, in cases of theft and
robbery involving the loss of gold, silver and other
valuable and precious metals and stones, the Police
Officers, more particularly, the Investigating Officers
under the first respondent indulge in harassing and
meting out unwarranted torture and it is also complained
that there are several cases where the Investigating
Officers of having in fact seized higher quantity of the
precious mettle than that is stated in the complaint. That
there have been several such instances and efforts by
the petitioners to have them remedied has not paid
dividends or rather limited dividends.
4. The learned counsel for the petitioners would
invite the attention of the Court to Annexure-D, a
Circular dated 19.02.2008, said to have been issued by
the Office of the DG & IG of Police, Bengaluru whereby
certain instructions have been issued to Investigating
Officers and further the authorities namely the
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Disciplinary Authority has been directed to initiate
appropriate disciplinary action against the staff/officer
who are in breach of the instructions or indulge in
improper steps or contradictory actions. The learned
counsel for the petitioners would further invite the
attention of the Court to Annexure-E, being the Standard
Operating Procedure. A reading of the Standard
Operating Procedure issued by the office of the DG & IG
of Police dated 06.03.2019 would yet again reveal the
imparting of certain instructions by the office of the top
most police officer in the State and evidences a slew of
instructions or guidelines issued and the same are as
follows:-
“To completely follow the direction of the Hon’ble
Supreme Court during the course of arresting the
accused.
While Obtaining voluntary statement of the accused
under Section 27 of Indian Evidence Act,
videograph has to be done, at the time of obtaining
voluntary statement compulsorily to obtain in the
presence of the Panchas. To adopt videogrpah in
P.F. and to enclose in the Charge-sheet and to file
the same.
If the accused given statement regarding made
theft/robbery/dacoity in the places more than one,
to make verification of the places/locations
connected compulsorily and after ensured that the
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act is commissioned to conduct Panchanama of the
said place.
Shall collect First Information Reports registered in
the said Police Stations relating to the crime cases
occurred in the places verified relying on the
statement of the accused.
When the accused giving information with regard to
those received theft material in such event, to
verify from various angles regarding whether he is
saying truth and to confirm the same.
The information of the persons received the theft
material and voluntary statement given by the
accused full information must be brought by the
Investigation Office to the notice of the Senior
Police Officers.
To make List of the Full Information of theft/stolen
ornaments/materials in every first information.
To seize the theft material when the Investigation
Officer going alongwith the accused and Panchas
compulsorily must wear the uniform and name
plate must be visible.
To get produce the Panchas on the basis of the
voluntary statement given by the accused by
showing the person/shop received the theft
material and produced it and to tell them to say full
details from the accused only.
The Investigation officer want to seize the
materials/ornaments in any case and regarding
Panchas present shall serve the Notice to the
Panchas and to obtain their signature.
To mention the date of serving, time and place in
the notice compulsorily.
If the shop where the accused sold the theft
material/pledge it falls to the jurisdiction of other
Police Station to give information to the Station
House officer of that Police Station.
When the accused shows the person/shop where he
had given the theft material to the Investigation
Officer and the Panchas at the time of entering the
shop must start videograph.
When the accused identify the person received the
theft material and informs to return the
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ornaments/articles he had sold earlier must ensure
the said information from the person received the
theft material.
If C.C.T.V. is installed in the shop must ensure its
collection and to obtain information.
Notice containing full details of Ornaments/Articles
mentioned in the First Information Report must be
enclosed and give the First Information Report to
those who received the theft material in the spot.
To obtain the signature of the Person doing
measurement of weight and quality of
article/material to be seized and to consider him as
Witness.
While seizing, to do the Panchanama in the spot
and to obtain the signature of the Person received
the theft material and signature of the Panchas.
To come on the same day to the police station and
to adopt the seized article/ornament/seizure slips
in the P.F. on the same day alongwith Mahazar and
to produce it to the Hon’ble Court for further
order.”
5. From a reading of the above instructions it
would clearly demonstrate that not only has the top
officer taken cognizance of the guidelines issued by the
Hon’ble Apex Court in the matters relating to
investigation of offences involving recovering of precious
mettle or Gems and Jewels, but has also advised various
other measures to be adopted by the Investigating
Officers.
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6. In the opinion of this Court, the Advisory is
comprehensive and if the Advisory is followed, there
would be no cause for complaint. That apart, it is
pertinent to note that the power of investigation is vested
in an Investigation Officer under the Statute, more
particularly, under Section 157 of the Code of Criminal
Procedure, 1973. Chapter 12 of the Act deals with
information and the powers of the police to investigate in
the event such information discloses the commission of
any cognizable offence and non-cognizable offences. In
the event the demand of the petitioners is answered in
the affirmative by this Court by directing that the
investigation be carried out in a particular manner, it
would virtually amount to negating the powers vested in
the Investigating Officer by the statute and the same is
impermissible.
7. Learned counsel for the petitioners would pray
that alternatively the writ petition could be disposed off
by directing the respondents to consider and dispose off
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the petitioners’ representation, more particularly,
Annexure-F is addressed to the first respondent. On
perusal of Annexure-F, it is seen that the same is
omnibus in nature. If the said request were to be
accepted and acted upon, it would virtually act as an
injunct in general, against all Investigating Officers which
would yet again be in the teeth of the provisions of
Chapter 12 of Cr.P.C. No right is vested nor is
demonstrated before this Court by the petitioners to seek
for a relief in the nature that is now being canvassed for
under the representation or as canvassed before this
Court. As pointed out supra, so long as the provision is
on the statute there cannot be directions contrary. The
said issue is also no more res-integra and it is a settled
principle of law that investigations cannot be directed to
be carried out in any particular manner nor can the
investigation be modulated to suit the convenience of the
accused nor can it be at the dictate of the accused or
witnesses. It is not to say that, there are no instances of
excesses by the Investigating Officers and the
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aberrations though an exception is a reality and it is not
the view of the Court that we are living in a utopias
society.
8. Be that as it may, as noted earlier, the
Investigating Officers cannot be shackled by an omnibus
or general order of injunction directing them to carry out
the investigation in a particular manner or adopt a
particular methodology unless and until such a
methodology, scientifically aides the investigation or is
capable of reducing human intervention in the matter of
investigation. In that view of the matter, this Court is of
the considered opinion that the relief as canvassed
before this Court and sought for is impermissible and
in rem
cannot be granted .
9. It also goes without saying that, this order
would not come in the way of the petitioners espousing
the cause of any individual, who is actually harassed or
suffers such harassment or transgression of law at the
hands of Investigating Officers or such other officers
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under the first respondent. In such an event, if
particular or specific instances are brought to the notice
of respondents No.1 and 2 or to the notices of
respondent No.3 or officers of the rank of Commissioner
of Police or District Superintendent of Police, the
complaints shall be addressed expeditiously and shall be
disposed off by affording an opportunity to the aggrieved
party.
10. This Court is of the opinion that, it would be in
the interest of justice and the ends of justice would be
better served if such complaints are directed to be heard
and disposed off within a stipulated time. In that view of
the matter, the instant writ petition is disposed off with a
direction to respondents No.1 to 3 and to all the officers
of the rank of Commissioner of Police and Superintendent
of Police of every District to consider and dispose off the
complaints by members of the petitioners’ Association
within a stipulated time period of six weeks from the date
on which it is placed in their hands. They shall thereafter
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intimate the complainants about the result of the inquiry
within two weeks thereafter. The
intimation/communication shall be by registered post.
11. Petition stands ordered accordingly.
Copy of this order be circulated to the respondents
and to all the officers of Commissioner’s of Police and
Superintendent of Police in the State of Karnataka.
Sd/-
JUDGE
Chs