FIR cannot be registered based on Panchanama: Karnataka High Court

The Karnataka High Court recently quashed a conviction under Karnataka Excise Act after finding that the first information report (FIR) was registered based on a panchanama. [Dayananda and Anr. v The State of Karnataka].A panchanama is a document that records evidence and findings that an investigating officer (IO) makes at the scene of an offence/crime..Justice S Rachaiah observed that a panchanama cannot be considered a complaint and therefore, the FIR could not have been registered. "Ex.P1 being a panchanama, it cannot be termed as a complaint. FIR cannot be registered on the basis of panchanama, however, in the present case, the respondent has registered the FIR on the basis of panchanama which is erroneous and not proper," the order dated April 4 stated. .The Court was hearing a plea by two men against their conviction under Sections 32 (illegal import), 34 (illegal possession) and 38A (allowing premises, etc, to be used for the purpose of committing an offence under the Act) of Karnataka Excise Act (KE Act)..The petitioners were arrested in 2008 following a search and seizure operation after the police received a tip. The trial court convicted the petitioners. This judgment was upheld by the appellate court. Aggrieved, the petitioners moved the High Court. .Advocate Pratheep KC, appearing for the petitioners, informed the Court that the FIR was registered at around 10:15 am but the search and seizure operation was carried out at around 8:30 am. He argued that the registration of FIR after conducting search and seizure itself was bad in law and the court ought not to have acted upon the FIR. Further, he pointed out that there was a dispute regarding the admission of evidence and that the prosecution did not comply with Section 294 of the Code of Criminal Procedure (CrPC) on proof of documents.Additionally, he informed the Court that the incriminating material which is required to be put to the accused in the statement under Section 313 CrPC was not put to the accused properly. .On the other hand, High Court Government Pleader (HCGP) Rahul Rai K told the Court that the investigating officer intercepted and arrested the accused right after receiving the tip and therefore, he could not take permission from the Magistrate. He referred to an explanation for the same by the investigating officer and stated that the same was in consonance with the KE Act.The HCGP contended that since the accused had not produced documents showing they were authorized to transport the liquor, registration of the case was justified..The Court, based on sections 154 (Information in cognizable cases) and 157 (Procedure for investigation) of CrPC, observed that there are two kinds of FIRs - one that can be filed by an informant and one that the police officer can file after receiving credible information. In both cases, the information or complaint should be reduced into writing before the investigation is carried out, the Court noted.Thereafter, it observed that a panchanama could not be said to be a complaint. Hence, the Court ruled that the registration of FIR after conducting search and seizure itself was bad in law and the trial court ought not to have taken cognisance of the same. "However, the Trial Court and the Appellate Court have committed error by considering the said FIR as appropriate and proper and recorded the conviction. Such conviction would be rendered as ineffective and the same can be termed as non est in law," the order stated.The Court observed that when the registration of the FIR itself was void, the subsequent proceedings were liable be set aside. Accordingly, it allowed the petition and set aside the judgments convicting the petitioners..[Read Order]