Further Investigation U/s 173(8) CrPC Must Always Relate To Incidents Of Crime For Which Charge Sheet Is Filed: Karnataka High Court

Justice Sreenivas Harish Kumar while quashing two cases registered under the NDPS Act, against party organiser Virendra Khanna said,

"Further investigation is always in accordance with Section 173(8) of Cr.P.C, with a view to collecting further evidence supplemental to the evidence already on record. It is not reinvestigation."

Case Background:

On 2.11.2018, the Bengaluru unit of Narcotic Control Bureau raided a house and seized contraband. Three persons including two foreign nationals were arrested and charged in crime no 588/2018 under relevant provisions of the NDPS Act. The NCB filed its chargesheet against the accused persons on April 30, 2019.

Thereafter, in August 2020, one BK Ravishankar upon interrogation allegedly revealed the name of the petitioner and stated that the latter was supplying ganja in the parties that he used to arrange at various places in Bengaluru. Thus the petitioner came to be arrested on September 4, 2020 in the crime no 588/2018.

In the meantime, the Assistant Commissioner of Police submitted a suo-motu report to the Cottonpet police for registration of a separate FIR against twelve accused persons (infamously known as Sandalwood drugs case) and accordingly, a fresh FIR in Crime No. 109/2020 was registered for the offences under the NDPS Act and section 120B of IPC.

The petitioner was shown as accused no 3 in the case. The chargesheet came to be filed in connection with FIR 109/2020 on 26.2.2021. Supplementary charge sheet was also filed later on.

Petitioners Arguments:

Senior Advocate Hashmath Pasha appearing for the petitioner submitted that prosecution of the petitioner in relation to two cases is in violation of section 300 of Cr.P.C. and Article 20(3) of the Constitution of India. FIR No.588/2018 was initially registered against three accused in relation to seizure of certain quantities of narcotic substances on 2.11.2018.

However, in the guise of further investigation, the petitioner came to be implicated as accused no.5, but there is nothing on record to show that he was involved in connection with sale of narcotic substances on 2.11.2018.

Pasha pointed out that based on the statement of B.K.Ravishankar, a separate FIR in Cr.No.109/2020 was registered at Cottonpet Police Station.

He argued that if the statement of Ravishankar led to registration of a separate FIR in Cr.No.109/2020, the petitioner could not have been arrayed as accused no.5 in Cr.No.588/2018.

Moreover, what the further investigation discloses is that the petitioner is said to have sold the narcotic substances such as cocaine and ecstasy pills in the parties that he arranged on 3.11.2018 and 7.11.2018. That means, these two alleged incidents constituted altogether distinct offences and therefore a separate FIR should have been registered.

Instead the petitioner has been implicated as accused in Cr.No.588/2018 which is against the procedure established under law, he said.

Prosecution Opposed the plea:

Special Public Prosecutor V.G.Tigadi, said petitioner came to be arrayed as accused no.5 in FIR No.588/2018 on the allegation of conspiracy with other accused. The investigation clearly shows the involvement of the petitioner in procuring the substances for sale in the parties that he used to organize.

It was also said that the information that the investigator collected during further investigation are relatable to FIR No.588/2018 and there was no need to register a separate FIR. Procedure has been followed.

Moreover, the officer who examined Ravishankar was not the investigating officer in relation to FIR No.588/2018. This was the reason for registration of a separate FIR in Cr.No.109/2020. But further investigation was undertaken in relation to FIR.No.588/2018 and a supplementary charge sheet came to be filed.

Thus the petitioner was arrayed as accused no.5 in that case. It was also contended that petitioner has given a voluntary statement disclosing his involvement in all the parties that he arranged.

Court findings:

On going through the records the court observed that the involvement of the petitioner, as can be made out from the charge sheet filed in relation to FIR.No.109/2020 came to light only after recording the statement of B.K.Ravishankar.

"If a separate FIR came to be registered thereafter, it is not understandable as to how the petitioner could be connected with FIR.No.588/2018 in relation to two parties said to have been arranged on 3.11.2018 and 7.11.2018," the Court observed at the outset.

It added "According to FIR No.588/2018, it was registered only in relation to the raid held on 2.11.2018. The further investigation in FIR.No.588/2018 led to implication of the petitioner as accused no.5. Further investigation must always relate to the incident of crime in respect of which a chargesheet has been filed already."

Then the court noted that in this case it is alleged that the petitioner purchased the drugs from accused no.1 to 3 for the purpose of selling them in the parties that were arranged on 3.11.2018 and 7.11.2018.

"Even if these allegations were to be true, it cannot be said that the sales said to have been made by the petitioner on these two dates can be connected with FIR No.588/2018," the Court opined.

Accordingly it held

"Absolutely there are no materials to connect the petitioner with the raid conducted on 2.11.2018. As the FIR 588/2018 discloses, initially it was against accused 1 to 3 only and it was from their possession that certain articles were seized. Whatever the police detected in the course of further investigation was altogether a different incident of crime in respect of which a separate FIR was necessary."

As regards to the prayer seeking to quash the crime no 109/2020 the court said "This FIR is not a second FIR as has been contended by the petitioner. This is in relation to a distinct offence for the aforesaid period and not in relation to the offence in connection with which FIR No.588/2018 was registered."

It then noted the charge sheet filed in this connection shows the involvement of the petitioner in similar kinds of offences since the year 2015. To which the court said "Certainly the past incidents of crime detected for the first time during investigation in connection with FIR No.109/2020, must be tried, but it must be in accordance with procedure established by law."

It added

"It so happens that many a time, the past incidents of crime will be detected when investigation is undertaken in connection with some other case. Whenever past crimes committed by the same person come to light, nothing prevents the police from registering a separate FIR for every distinct offence detected and filing a separate charge sheet, if all those offences cannot be tried jointly in accordance with Section 219 of Cr.P.C."

Relying on Section 219 (1) of CrPC the court said "If the FIR No.109/2020 is in connection with offences said to have been committed between 11.04.2020 and 04.09.2020, the petitioner cannot be tried for the earlier offences of the years 2015, 2018 and 2019, in view of Section 219(1) of Cr.P.C. It was necessary for the police to have registered separate FIRs for those past offences and filed separate charge sheets after investigation."

Following which the court opined "What is made out by the counsel for the petitioner is a sheer procedural lapse. This can be set-right. If really the petitioner's involvement is there in commission of offences punishable under the NDPS Act, he must be tried in accordance with law and punished in case the prosecution is able to prove its case beyond reasonable doubt. The lapses in procedural aspects should not come in the way of prosecuting the petitioner."

It permitted the prosecuting agency to set-right all the procedural mistakes and take action against the petitioner in accordance with law.

Case Title: Virendra Khanna v. State of Karnataka

Case No: WRIT PETITION NO.1983 OF 2021

Citation: 2022 LiveLaw (Kar) 27

Appearance: Senior Advocate Hasmath Pasha, a/w advocate Nasir Ali for petitioner; Special Public Prosecutor Veeranna G Tigadi for respondent