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M.R. Hiremath v. State Of Karnataka

Karnataka High Court

Feb 19, 2016

Judgment

Subsequent
References

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Structured Summary of the Opinion: Writ Petition No.20394 of 2013 (GM-RES)

Factual and Procedural Background

The petitioner, Sri M.R. Hiremath, an Assistant Commissioner of the Bangalore Development Authority (BDA), challenged registration of an FIR dated 16.11.2012 in Crime No.83/2012 by the Lokayuktha Police under Sections 7 and 8 of the Prevention of Corruption Act, 1988. An investigation followed and a charge sheet was subsequently filed including offences under Sections 7, 8, 10, 13(i)(e) and 13(2) of the Act. The petitioner initially sought quashing of the FIR and later amended the petition to quash the charge sheet, but his counsel ultimately restricted relief sought to quashing the FIR only.

The factual matrix as alleged in the complaint: lands owned by relatives of the complainant were sought to be de-notified from acquisition for layout development; the complainant and a friend (CW-2/Sunil Kumar) approached accused No.2 (an advocate) who demanded gratification; accused No.2 acted as an agent/middleman for the petitioner; a spy video camera was entrusted to the complainant's friend by Lokayuktha Police; meetings on 15.11.2012 between the complainant, accused No.2 and the petitioner were recorded on the camera, and accused No.2 was allegedly caught accepting Rs.5 lakhs on 16.11.2012 as an advance. The FIR was registered on 16.11.2012 and pre-trap entrustment mahazar and subsequent trap procedures took place the same day.

The matter was heard before the High Court, and the Court reserved and pronounced the order on 19.02.2016.

Legal Issues Presented

Whether the registration of the FIR on 16.11.2012 was legally sustainable in light of recordings and a spy video camera provided or used before registration.
Whether the handing over and use of a spy video/voice recording device prior to registration amounted to a preliminary inquiry (permissible) or constituted beginning of investigation/collection of evidence (which could vitiate subsequent proceedings), for purposes of Section 154 Cr.P.C. and related authorities.
Whether the requirements of Section 154 Cr.P.C., and the principles laid down in Lalita Kumari (para 120 and related directions on preliminary inquiry and registration), were satisfied in the circumstances of this case.
Whether any procedural irregularities in the conduct preceding registration (entrustment mahazar, recordings, search and seizure) vitiate the registration of the FIR.

Arguments of the Parties

Petitioner's Arguments (by Sri Krishna S. Dixit, Adv.)

The petitioner is a KAS officer with about 30 years of blemishless service; registration of the case has frozen his promotional prospects.
The complainant is not the owner of the lands and the story of events (including use of a spy camera) raises credibility concerns about the complainant and the Investigating Officer.
Alleged conversations recorded did not refer to the complainant's specific survey numbers or de-notification; some recordings were missing or not recorded (battery drained), which casts doubt on the authenticity and completeness of evidence.
Office notes show petitioner recommended against de-notification for legitimate reasons (impact on layout development) and therefore an animosity-motivated false implication is alleged.
Relied on the Supreme Court and High Court authorities (including State of Haryana v. Bhajan Lal and Ramesh Desai) to contend that this case warrants quashing of proceedings.
Counsel limited the relief ultimately sought to quashing only the FIR (not the charge-sheet or complete proceedings) during argument.

Respondent's Arguments (Special Public Prosecutor Sri Venkatesh P. Dalawai)

This is the petitioner's third petition on the same subject; a charge sheet has been filed after obtaining sanction to prosecute and cognizance has been taken; the matter is at the stage of hearing before charge in the trial court.
The recording/spy camera episode (recital: camera entrusted by Lokayuktha Police on 15.11.2012) and the events captured (meeting, handing over of Rs.5 lakhs to accused No.2) demonstrate that the information disclosed a cognizable offence and thus the SHO correctly registered the FIR on 16.11.2012 pursuant to Section 154 Cr.P.C.
Pre-trap procedures (entrustment mahazar) and the subsequent seizure/transcription of the camera contents were carried out on the same day as registration; the prosecution case rests not solely on the camera but also on the written complaint and trap evidence (tainted notes) against accused No.2.
Search of the petitioner's office recovered original documents (per a High Court direction in specified W.A. matters), and the physical presence of the file in the petitioner's drawer supports an inference of intentional retention; official entries do not indicate that the file was placed before the Board.
Earlier petitions by the petitioner were withdrawn (dates and particulars given), undermining an argument that the registration was wrongful; factual distinctions exist between the present matter and Ramesh Desai (and other cited authorities), so the petitioner cannot take benefit of those decisions.
Relied on authorities (including Lalita Kumari, State of Rajasthan v. Rajkumar Agarwal, Bhagwant Kishore Joshi, and other High Court decisions) to argue that discreet preliminary enquiries and entrustment of a recorder prior to FIR do not necessarily vitiate subsequent proceedings and that irregularities do not automatically invalidate the registration absent shown prejudice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Haryana & Others -vs- Bhajan Lal & Others, 1992 Supp (1) SCC 335	Referenced in the opinion as a Supreme Court "postulate" applicable to the present case (as described in the text).	The Court observed the case "falls within the specific postulate" of Bhajan Lal; the opinion does not elaborate the exact postulate from Bhajan Lal beyond this reference.
Sri Ramesh Desai & Another -vs- The State of Karnataka by Raichur Lokayuktha P.S., 2012(3) KCCR 1738	Held that recording of conversation for demand of bribe does not constitute a preliminary enquiry but amounts to collecting of evidence.	The Court noted this ruling and acknowledged its ratio; the respondent disputed factual similarity and the Court considered distinctions in the present case.
Girishchandra -vs- The State by Lokayuktha Police, ILR 2013 KAR 983 (DB)	Held that in trap cases it is just and necessary that recording of the complaint/registration of crime and submission of FIR to the jurisdictional Court before embarking upon the protocol of a raid is mandatory (as stated in the opinion).	The Court referred to this authority as supporting the proposition that certain procedural formalities (registration etc.) must be respected in trap cases and noted subsequent follow-up decisions.
Sri Ratnakar Shetty -vs- State through Lokayuktha Police and Another, Criminal Petition No.2812/2013 (DD 03.12.2015)	Followed the ratio in Girishchandra (as stated in the opinion).	The Court observed that Girishchandra's ratio was followed in Ratnakar Shetty; the opinion uses these to contextualise approaches to pre-trap procedures.
Lalita Kumari -vs- Government of Uttar Pradesh & Others, (2014) 2 SCC 1	Sets out detailed principles (para 120) on when FIR registration is mandatory, when preliminary inquiry is permissible, categories of cases where enquiry may be made (including corruption cases), time-bound limits for enquiries, and diary entry requirements.	The Court relied extensively on Lalita Kumari to explain Section 154(1) Cr.P.C., to list circumstances permitting preliminary inquiry, and to hold that where information discloses a cognizable offence the FIR must be registered. This formed a central pillar of the Court's reasoning.
H.N. Rishbud & Another -vs- State of Delhi, AIR 1955 SC 196	Referenced for the proposition that collection of evidentiary material is to be treated as investigation and not as a preliminary enquiry.	The Court cited this authority to distinguish activities that amount to investigation (collection of evidentiary material) from permissible preliminary inquiry.
Sri Lakshmikantha S.G. -vs- The State by Karnataka Lokayuktha Police and Another, Criminal Petition No.3750/2013 (DD 11.2.2016) (authored by the same Judge)	Noted in the opinion that transcription of voice recordings incorporated in a trap mahazar prior to registration was held to vitiate further investigation.	The Court acknowledged this earlier decision and its finding that certain pre-registration transcription could vitiate subsequent proceedings; but in the present case the Court distinguished the factual sequence and considered the totality of events.
Criminal Revision Petition No.187/2014 (Sri N. Rajanna -vs- State of Karnataka by Lokayuktha Police; D.D.26.6.2014)	Held that entrustment of a recorder prior to registration of FIR does not necessarily amount to collection of evidence and that discreet enquiries to collect information prior to registration will not vitiate proceedings; accused must show prejudice.	The respondent relied on this line of authority; the Court noted it as part of the jurisprudence showing divergent views and used it in weighing whether pre-registration acts vitiated the FIR here.
State of Uttar Pradesh -vs- Bhagwant Kishore Joshi, AIR 1964 SC 221	Stated, as cited in the opinion, that illegality or irregularity will not necessarily vitiate proceedings.	The respondent relied on this principle to argue that irregularities do not automatically invalidate proceedings; the Court recorded this submission.
AIR 1957 SC 142 (case not named in the opinion)	Referred to in the opinion as authority addressing which irregularities vitiate proceedings and which do not (statutory provision/reference).	The respondent cited this authority to support the contention that certain irregularities are non-vitiating; the Court recorded and considered this submission among other authorities.
State of Rajasthan -vs- Dr. Rajkumar Agarwal & Another, 2012 AIR SCW 5362	Cited for the proposition (as stated) that a complaint in respect of offences under the P.C. Act was entertained although one contention was that FIR had been registered after recording the voice of the accused while demanding bribe.	The respondent relied on this decision to show that registration after voice recording does not necessarily preclude continuation of proceedings; the Court recorded and weighed this authority.
High Court judgments W.A. No.2624/2005 and 2625/2005 (dated 25.11.2015)	Referenced in the opinion as directing certain handling of documents relevant to de-notification of lands (used as factual background).	The opinion records that original documents were recovered from the petitioner's table "as per the direction of the judgment" in these Writ Appeals; the reference was used in the factual account rather than as a primary legal principle.

Court's Reasoning and Analysis

The Court proceeded by first recapitulating the statutory duty under Section 154(1) Cr.P.C. to register an FIR when information discloses commission of a cognizable offence. The Court extensively referred to the Supreme Court's decision in Lalita Kumari (para 120) to explain when FIR registration is mandatory and when a preliminary inquiry is permissible. The Court emphasized that preliminary inquiry is permitted in certain categories (including corruption cases) but that where information discloses a cognizable offence, registration is mandatory.

The Court then addressed the contested legal question: whether entrustment and use of a spy video/voice recorder prior to registration converted what should have been a preliminary inquiry into an unlawful investigation (thereby vitiating FIR registration). The Court noted that jurisprudence is divergent on this point: some High Court decisions (e.g., Ramesh Desai, Girishchandra, Ratnakar Shetty) and certain of the Court's own earlier decisions treat pre-registration recording as collection of evidence (amounting to investigation), while other decisions (and some lines of High Court authority) allow discreet pre-registration enquiries and entrustment of recorders without vitiating proceedings, provided no prejudice is shown and formalities are later complied with.

Turning to the facts, the Court set out the chronological sequence: a spy camera was entrusted on 15.11.2012 and recorded a meeting between the complainant, accused No.2 and the petitioner; the FIR was registered on 16.11.2012; an entrustment mahazar (pre-trap mahazar) was made and the camera's contents were transferred and seized that same day; subsequent trap operations resulted in accused No.2 being caught with tainted currency notes. The Court observed that the prosecution case was not founded solely on the spy camera but also on the written complaint and independent trap evidence.

Applying Lalita Kumari's instruction — that if information discloses a cognizable offence the police must register the FIR — the Court concluded that the totality of the complaint and supporting materials disclosed a cognizable offence such that the SHO was obligated to register the FIR on 16.11.2012. The Court found that allowing the complainant to have the spy camera on 15.11.2012 did not, in the Court's view, demonstrate that the Investigating Officer had commenced a prohibited investigation prior to registration; rather, the oral allegation and supporting material culminated in registration, after which formal investigative steps (entrustment mahazar, seizure, trap) were taken.

The Court noted procedural history relevant to credibility and conduct: the petitioner had earlier filed (and withdrawn) two petitions under Section 482 Cr.P.C./writ petitions without seeking liberty; the Court recorded the respondent's contentions about recovered files from the petitioner's office and the presence of entries indicating receipt and movement of files.

The Court also recorded that a contention about lack of jurisdiction of Lokayuktha Police under the P.C. Act was not pressed at argument and therefore not determined. The Court emphasized that since the petitioner restricted relief to quashing the FIR, alleged irregularities in investigation would be matters for trial and for appropriate trial-stage remedies (for example, a discharge application).

Weighing the precedents and the facts, the Court concluded that no illegality was shown in the registration of the FIR and therefore refused to quash the FIR. The Court kept other contentions open for trial and observed that where alternative remedies exist under the Code of Criminal Procedure, the High Court ordinarily refrains from exercising extraordinary jurisdiction under Section 482.

Holding and Implications

Core Ruling: The writ petition challenging the registration of the FIR is rejected. (The opinion states: "For the discussion supra, the petition is rejected.")

Implications for the Parties

The FIR registered on 16.11.2012 remains valid and subsisting; the matter proceeds to trial (the charge-sheet has been filed and cognizance taken).
The petitioner may pursue trial-stage remedies, including seeking discharge before the Trial Court if so advised; the High Court did not grant pre-trial quashing of the FIR under Section 482 Cr.P.C.
The Court did not decide (and expressly kept open) other contentions and did not create a new binding precedent overturning existing jurisprudence: the decision is confined to the facts, the application of Section 154 Cr.P.C. and the authorities considered in this case.

All other contentions were kept open for adjudication at the appropriate stage; the Court emphasized adherence to procedural safeguards in registration and investigation while recognizing that discreet factual and procedural distinctions may lead to different outcomes in other cases.

This summary is strictly limited to and based on the factual statements, arguments, authorities and conclusions set out in the provided opinion. No information beyond the text of that opinion has been added or inferred.

Show all summary ...

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19^THDAY OF FEBRUARY 2016

BEFORE

THE HON'BLE MRS.JUSTICE RATHNAKALA WRIT PETITION NO.20394 OF 2013 (GM-RES)

BETWEEN:

SRI M.R.HIREMATH

S/O RACHAIAH SWAMY

AGED ABOUT 54 YEARS

R/A # 1, 16^THCROSS,

6^THMAIN, MALLESWARAM,

BANGALORE - 560 003. ...PETITIONER

(BY SRI KRISHNA S.DIXIT, ADV.)

AND:

1. THE STATE OF KARNATAKA

THROUGH THE LOKAYUKTA POLICE

KARNATAKA LOKAYUKTA

M.S.BUILDING

BANGALORE - 560 001.

2. NAGARAJ

S/O GOVIND R/O NO.190, I N BLOCK,

RAJAJINAGAR,

BANGALORE - 10. ...RESPONDENTS (BY SRI VENKATESH P. DALAWAI, SPL PP FOR R1; R2 - SERVED AND UNREPRESENTED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482

OF CR.P.C., PRAYING TO QUASH THE FIRST INFORMATION

REPORT DATED 16.11.2012 IN CRIME NO.83/2012 REGISTERED

BY THE R1 POLICE FOR THE OFFENCES PUNISHABLE UNDER

SECTIONS 7 AND 8 OF THE PREVENTION AND CORRUPTION ACT,

1988, VIDE ANNEXURE - A AND ETC.

THIS WRIT PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 02/02/2016 AND COMING ON FOR

PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE

THE FOLLOWING:-

O R D E R

The petitioner is aggrieved by the action of the Lokayuktha Police in registering the case against him under Sections 7 and 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for brevity) by arraying him as the first accused. Subsequently on completion of the investigation, the Investigating Officer has filed charge sheet also in respect of the offence under Sections 7, 8, 10, 13(i)(e) and 13(2) of the Act. Since the charge sheet was filed during the pendency of the petition, the petitioner got amended his petition seeking the relief for quashing the charge sheet. However, subsequently Sri.Krishna S.Dixit, learned Counsel for the petitioner made a submission that he restricts his prayer only to the extent of quashing of the FIR.

2. The allegation of the prosecution is, Petitioner works as an Assistant Commissioner, Bangalore Development Authority, Central Office, Bangalore; the land belonging to the mother of the complainant/2^ndrespondent and a relative of the complainant in Sy.No.102/2 measuring 23 guntas and 102/1 measuring 27 guntas, totally 1 acre 10 guntas was acquired for developing Arkavathi Layout. The land owners submitted application to de-notify their lands from acquisition. The second accused/N.R.Ramesh is an Advocate, who was acting as the Agent of the first accused; the complainant approached the second accused along with his friend Sunil Kumar/CW-2. The second accused demanded gratification of Rs.20 lakhs to place the file of the complainant before the De- notification Committee. However, on the request of the complainant, came down for Rs.16 lakhs and demanded advance amount of Rs.5 lakhs. The complainant approached the petitioner/first accused in his office on

15.11.2012 at 8.30 p.m. along with accused No.2. Petitioner consented for Rs.20 lakhs as expressed by accused No.2, thereby demanded illegal gratification for carrying out official work and abeted accused No.2 to receive bribe money on his behalf. While accused No.2 was receiving Rs.5 lakhs advance amount of bribe money as agreed before, he was caught red-handed on the evening of 16.11.2012 in a Hotel.

3. Sri.Krishna S. Dixit, learned Counsel for the petitioner submits that, the petitioner is a K.A.S. Officer of 1986 batch and has put in about 30 years of blemishless service. Because of the registration of the case, his promotional opportunity is freezed. The complainant is not the owner of the lands, which are sought to be de-notified by the owners. As per the complaint allegation, the complainant suspected that accused No.2/N.R.Ramesh would demand money and therefore, had deputed his friend Sunil Kumar to Lokayuktha Office on 8.11.2012 and a Spy Camera was

handed over by the Lokayuktha Police to Sunil Kumar for recording the conversation between him and accused No.2; complainant met accused No.2 on 12.11.2012 and 13.11.2012. During the interaction, accused No.2 had agreed to receive Rs.16 lakhs gratification on the very same night of 13.11.2012; the complainant met the petitioner in his office but the Spy Camera did not work since the battery had drained out. The conversation between accused No.2 and the petitioner on 15.11.2012 pertains to betterment charges in respect of some other lands of the same extent. The amount mentioned in the conversation was with regard to the statutory betterment tax approximately worked out as per Sections 22 and 23 of the B.D.A.Act. There is absolutely no conversation between the complainant and the petitioner. Sri. Krishna S.Dixit continues, in the said conversation, there is no mention of survey numbers and village pertaining to the property of the mother and cousin of the complainant and also there

is nothing about de-notification. Learned Counsel further adds that, though it is alleged in the complaint that complainant's friend Sunil Kumar had carried a spy camera given to him by the Lokayuktha Police while meeting second accused, said conversation of 8.11.2012 is not recorded. That apart, conversation of accused No.2 with the petitioner on 12.11.2012 and 13.11.2012 is also not recorded on the pretext that the battery of the spy camera had drained out, but it is not a plausible explanation. The story woven by the complainant creates doubt about the credibility of the complainant so also the Investigating Officer. In fact, the jurisdictional S.L.A.O. after spot inspection had recommended for de- notification, but it was the petitioner, who disagreed with the said recommendation and recommended against de- notification pointing out the reason to the B.D.A. Committee, since de-notification if ordered, it would adversely affect the layout development. This generated the animosity and the complainant hatched a plan to

falsely implicate the petitioner. The notes maintained in the office of the petitioner disclose that he had recommended against de-notification. This is a case which falls within the specific postulate made by the Supreme Court in State of Haryana and Others -vs- Bhajan Lal and Others reported in 1992 Supp (1) SCC

335. There is a ruling of this Court in the case of Sri Ramesh Desai and Another -vs- The State of Karnataka by Raichur Lokayuktha P.S. reported in 2012(3) KCCR 1738 whereby it was held "recording of conversation for demand of bribe does not constitute preliminary enquiry rather it amounts to collecting of evidence applies to the present case". As held by this Court in Girishchandra -vs- The State by Lokayuktha Police reported in ILR 2013 KAR 983(DB), in all trap cases, it is just and necessary that recording of the complaint/registration of crime and submission of the FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. The said judgment is

followed in the later case of Sri.Ratnakar Shetty -vs- State through Lokayuktha Police and Another in Criminal Petition No.2812/2013 DD 3.12.2015. The inner voice of the judgment of the Apex Court in Lalita Kumari -vs- Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1 does not militate against the ratio of Ramesh Desai's case. The collection of evidentiary material is necessarily to be treated as investigation and not a preliminary enquiry in the light of the judgment of the Apex Court in H.N.Rishbud and Another -vs- State of Delhi reported in AIR 1955 SC

196. In the light of the above judgment, the realm of investigation begins after the preliminary enquiry ends. The preliminary enquiry is intended to avoid unnecessary harassment to citizens and also to ensure that public time and money is not unworthily spent. The case of the prosecution is fraught with huge anomalies. The prosecution in order to establish the guilt of the accused has to prove the four important ingredients i.e., (1) he

has a role to play in accomplishing the job involved; (2) for doing the said job which was yet to be done, he had demanded money or favour; (3) he has received the money and (4) such money is recovered from his possession. All the above four ingredients since absent against the petitioner, the case registered against the petitioner is liable to be quashed.

5. In reply, Sri.Venkatesh P.Dalawai, learned Special Public Prosecutor for the respondent/Lokayuktha submits that, this is a third petition moved before this Court by this petitioner. After completion of investigation, charge sheet is filed on obtaining sanction to prosecute the petitioner. Now the stage before the Trial Court is to hear before charge. The primary ground urged by the petitioner in this petition is, before registration of the first information report, investigation started as soon as the spy video camera was handed over to the complainant on 15.11.2012, it was a part of

discreet preliminary enquiry to gather proper information regarding commission of cognizable offence. The meeting of the complainant with the second accused is seen in the video recording while demanding illegal gratification on 15.11.2012. The FIR was registered on 16.11.2012 and pre-trap panchanama/entrustment mahazar was conducted on the very same day. On the very evening of 16.11.2012 on the instructions of second accused, complainant met him at Coffee Day Café near M.E.S.College, Malleswaram, Bangalore. In the video camera, the action i.e., complainant handing over Rs.5 lakhs to the second accused as a part of demanded illegal gratification is recorded, which money was to be paid to the petitioner as per the demand of the petitioner dated 15.11.2012. The petitioner filed a petition on 10.12.2012 under Section 482 of Cr.P.C. in Criminal Petition No.7562/2012 D.D.26.2.2013 seeking quashing of the entire proceedings. However, he withdrew the petition on

26.2.2013 without seeking any liberty. On 4.3.2013, he files one more petition in W.P.No.11252/2013 for the same relief on the very same ground by quoting Ramesh Desai's case. The writ petition was the verbatim re- production of the earlier Criminal Petition No.7562/2012. On 13.3.2013, after arguing at length, the petitioners sought to withdraw the petition with liberty to take such course of remedy in law. On 6.5.2013, present petition is filed for the same relief with same grounds. On 29.12.2013, charge sheet was filed to the Court and cognizance is taken. On 20.8.2013, he got amended the prayer column without changing the substance of grounds in the body of the petition. Learned Special Public Prosecutor further submits that, as recorded in the spy camera, the petitioner and the second accused had spoken about the bribe amount only in respect of de-notification of the land acquired by the Bangalore Development Authority. The very fact

that, the entry was refused to the complainant when he wanted to meet the petitioner but subsequently he was allowed to the chamber when accompanied with the second accused on 13.11.2012 and 15.11.2012 shows that the second accused was acting as middleman to the petitioner. During investigation on 17.11.2012, petitioner's office was subjected to search in the presence of Panchas and BDA Officers. Original documents pertaining to de-notification of lands as per the direction of the judgment of the High Court in W.A.No.2624/2005 and 2625/2005 dated 25.11.2015 were recovered from his table. There are entries to show that the file was received in the office of the petitioner on 2.3.2012 and the same was returned to the Land Acquisition Section on 12.9.2012 without any remarks by the petitioner. The very physical availability of the file in the table drawer of the petitioner shows that he intended to keep the file with him for the reasons best known to him. The statements of the witnesses/officials of B.D.A. show that

he had kept the file illegally even though entries in the file were otherwise. There is not even a single entry to show that the file was placed before the Board for final decision. When he is contending that he had moved all the files relating to de-notification of acquired lands of entire Arkavathi Layout on 13.10.2012, how come the above file relating to de-notification of Arkavathi Layout was available in his drawer? During the trap proceeding, he has given his defence statement but has not mentioned anything about the movement of files from his office. If he had moved all the files, he could have easily told the complainant to go to the other office wherever the file was available, instead he has chosen to demand bribe amount through his middleman/accused No.2. Sri.Venkatesh P. Dalawai further submits, petitioner mainly relies on the judgment of this Court in Ramesh Desai's case (supra) stating that handing over the voice recorder amounts to collection of evidence. But

the facts between the present case and Ramesh Desai's case differ. That was a case where the absence of sanction was quoted as one of the reasons to quash the proceedings. That apart, the report secured from the FSL indicated that voice recorded conversation did not match the voice samples and the complaint was filed with malafide intention. Hence, the petitioner cannot take the benefit of Ramesh Desai's case. The Apex Court in Lalita Kumari's case (supra) held that, the Police have power to do preliminary enquiry in corruption cases. The entrustment of the Recorder prior to registration of FIR does not amount to collection of evidence in corruption matters as per the judgment of this Court in Criminal Revision Petition No.187/2014 and connected case D.D.26.6.2014 (Sri.N.Rajanna -vs- State of Karnataka by Lokayuktha Police); making discreet enquiry and collection of information about the offence before registration of the case by the Investigating Officer will not vitiate the proceedings as the accused is not aware

that such discreet enquiry was being carried out. The accused must establish the prejudice caused to him by such discreet enquiry during the trial. In the light of the judgment of the Apex Court in AIR 1964 SC 221 in the matter of State of Uttar Pradesh -vs- Bhagwant Kishore Joshi, illegality or irregularity will not vitiate the proceedings. A provision is made in the Code of Criminal Procedure as to which irregularities vitiated and which do not vitiate (AIR 1957 SC 142). The Apex Court in the matter of State of Rajasthan -vs- Dr.Rajkumar Agarwal and Another reported in 2012 AIR SCW 5362, bestowed the complaint in respect of the offence under the P.C.Act though one of the contentions was, FIR was registered after recording the voice of the accused while demanding bribe. Hence, the writ petition is liable to be dismissed.

6. In the light of the above rival submissions and also the prayer having been restricted by the petitioner

only to the extent of seeking quashing of registration of the FIR, the pivotal question would be about the legality/sustainability of the FIR registered against the petitioner.

7. Let us commence from the premise of Section 154(1) of Cr.P.C., which mandates registration of the FIR as soon as information relating to commission of a cognizable offence is given orally to the officer in-charge of the Police Station. Section 154(1) of Cr.P.C. reads thus:

"154. Information in cognizable cases. - (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

. . . . . . . . . . . ."

8. In the case of Lalita Kumari (supra), rigidity was relaxed to certain extent by allowing preliminary enquiry in certain circumstances. The Apex Court at para-120 observed thus:

"120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR information received by him discloses a cognizable offence.

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

(d) Corruption cases

(e) Cases where there is abnormal delay/laches 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.

120.7. 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.

120.8. Since the General Diary/Station Diary/Daily Dairy is the record of all information received in a police station, we direct 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 be reflected, as mentioned above".

9. As noticed supra, divergent views are taken regarding recording of the voice of the accused prior to registration of the case. The Apex Court in the matter of Dr.Rajkumar Agarwal (supra), though noticed that the voice of the accused while demanding the bribe was recorded did not touch upon the legality or otherwise of such voice recording. In Criminal Petition No.3750/2013 D.D. 11.2.2016 in the matter of Sri.Lakshmikantha S.G. -vs- The State by Karnataka Lokayuktha Police and Another (authored by me), the transcription of the voice recording of the accused prior to registration of the case since was incorporated in the trap mahazar, was held as vitiating the further investigation. But here is a case where somebody on behalf of the complainant goes to the office of the Investigating Officer and is provided with a spy video camera on 15.11.2012. For the first time, the complainant meets the petitioner on the very same day and the said meeting is recorded in the camera. On 16.11.2012, FIR is registered by translating

the prior events in chronological order. In the entrustment mahazar carried out subsequent to registration of the case on the very same day, the spy camera is seized after transferring its audio and video contents to a Laptop. The contents are incorporated in the entrustment mahazar. The investigation is proceeded by successfully trapping the second accused along with tainted currency notes. It is not just on the material gathered from the spy camera the prosecution case rests, but also on the information brought in the written complaint by the complainant. When the information disclosed a cognizable offence, the S.H.O. had no other go except to register the FIR as per mandate of Section 154(1) of Cr.P.C. The petitioner was conscious about the progress of the investigation, twice he withdrew petitions filed under Section 482 of Cr.P.C. without assigning any reason and at the fag end, opted to file the present petition. It cannot be said that the S.H.O. of the Police Station ought to have registered the case on 8.9.2011

itself when CW-2/Sunil Kumar, the friend of the complainant approaches him with the hearsay information. As such, there is no direct material from the video of the spy camera against the petitioner. It is the totality of the allegation made against him by the complainant in the complaint that definitely discloses commission of cognizable offence, which was bound to be registered and which is done also. The entrustment mahazar being a pre-trap mahazar purported to be a preparation to trap the accused person, I do not feel, by allowing the spy camera with the complainant, the Investigating Officer has commenced investigation even before registration of the case. The oral allegation and the supporting materials placed by the complainant have culminated in registration of the complaint. Thereafter, the Investigating Officer has investigated the matter and formed opinion to file his final report and the Court is also said to have taken cognizance of the offence. I do not find any illegality in registration of the case. Though

a contention was taken by the petitioner that the Lokayuktha Police have no jurisdiction to register the case under the Prevention of Corruption Act, at the time of argument, such contention is not pressed. The irregularities pointed out during investigation cannot be counted upon in view of the fact that petitioner is restricting his claim only on illegality of registration of the FIR. Now the matter since is before the Trial Court, the petitioner has to work out his remedy for discharge before the Trial Court only, if so advised. When an alternative remedy is provided under the Code of Criminal Procedure, this Court usually refrains from exercising jurisdiction under Section 482 of Cr.P.C. For the discussion supra, the petition is rejected. All the contentions are kept open.

Sd/-

JUDGE

KNM/-