: 1 : R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 767/2018 BETWEEN Mr. K .P. Champakadhamaswamy S/o Late K.S. Puttaswamy Aged about 61 years No.291, 1st ‘A’ Main Road 2nd Stage, Mahalakshmi Layout West of Chord Road Bangalore - 560086.
(By Sri. P.N. Hegde , Advocate) AND State by BESCOM Vigilence Police I-Floor, H.R.D. Center Cresent Tower Cresent Road, Madhava Nagar Bangalore – 560 001.
(By Sri. P. Prasanna Kumar, Spl.PP) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 11.07.2018 passed by the LXXVI Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru on the application filed by the petitioners under Sections 227 and 239 of Cr.P.C in Spl.C.C.No.04/2013 and consequently discharge petitioner from the alleged offences under Sections 13(1)(e) r/w 13(2) of Prevention of Corruption Act.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER Heard learned counsel for the petitioner and learned Spl.Public Prosecutor for the respondent. Perused the order passed by the Court below in Spl.CC.4/2013.
2. The brief facts of the case is that petitioner/accused had joined the service as a Meter Reader, Attendant Grade – II on 03.05.1976. A case came to be registered against the petitioner/accused on 27.03.1999 in Crime No.06/1999 for the offence punishable under Section 13(e) of the Prevention of Corruption Act on the allegations that the petitioner/accused has amassed assets which is disproportionate to his known source of income.
3. The IO after investigation had laid the charge sheet. As per the final report, the IO had considered the check period as 03.05.1976 to 28.03.1999 and according to the final report, he has acquired disproportionate assets worth Rs.73,67,167/- i.e. 101%.
4. The accused filed an application under Section 227 read with Section 239 of Cr.P.C for discharge, on the ground that no offence under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act has been made out and that the sanction and authorization are not valid. No objections were filed on behalf of prosecution. After hearing the arguments advanced on both sides, the Court below vide order dated 11.7.2018 rejected the said application. Hence, this petition by the accused – petitioner.
5. Learned counsel for the petitioner contends that the Court below without application of mind and the law on point has rejected the application filed by the petitioner seeking discharge. He contends that the trial Court has failed to appreciate the fact that, the Vigilance Cell though was headed by Deputy Inspector General of Police was not designated as Police Station under Section 2(s) of Cr.P.C. The Government of Karnataka vide notification dated 19.04.1997 declared the Vigilance Cell of KEB as police station. The legal fiction is that the Vigilance Cell has secured the status of police station and empowered to investigate and prosecute the cases referred to in the official memorandum dated 29.02.1992 w.e.f. 19.04.1997 and till then the Cell was engaged only with enquiries. Further, the Government of Karnataka extended powers and jurisdiction to the Vigilance Cell in limited extent in respect of Electricity Act, 2003, Sections 379, 406, 407, 408, 409, 34 and 109 of IPC and in respect of Prevention of Corruption Act, 1988.
6. It is the further contention that the Vigilance Cell of KEB has been granted with power to investigate the offences falling under the provisions of Prevention of Corruption Act w.e.f. 11.09.2003. But in the instant case, the investigation has been completed as on 29.07.2002 before empowering the Vigilance Cell over the offences under the said provisions. As such, the entire investigation has been carried out by the incompetent agency and the same cannot be admitted as evidence.
7. He further contends that Section 17 of the P.C. Act mandates that no officer below the rank of the SP has the power to investigate the matter under Section 13(e) of the P.C. Act. The delegation has to be in conformity with the aims and object of Section 17 of the P.C. Act. But in the instant case, the Police Sub- Inspector has prepared the source report and the delegation of power by the SP to his subordinate is not in conformity with the scope and object of proviso to the Section 17 of the P.C. Act. In the instant case, the SP has accorded the authorization to the officer who has registered the case and thereafter, 3 officers have investigated the matter at different stages in the absence of authorization under Section 17 of the P.C. Act. On all these grounds, learned counsel for the petitioner seeks for setting aside the order passed by the Court below by allowing the present petition.
8. Learned Spl.PP for the respondent State contends that the order of the Court below is a well considered order, it does not require any interference of this Court. The case pertains to Disproportionate Assets under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988 wherein the petitioner/accused has amassed assets which is disproportionate to his known source of income. The IO after completing the investigation has laid the charge sheet and as per the final report the petitioner has acquired disproportionate assets of Rs.73,67,167/- to his known source of income. Therefore, it does not call for interference as where the accused is required for facing of trial. On these grounds he sought for dismissal of the petition.
9. In this context of contention as taken by learned counsel for the petitioner and learned Spl.PP for the respondent, it is not in dispute that case in Crime No.06/1999 for the offence punishable under Sections 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988 against the petitioner/accused on the allegations that, the petitioner has amassed assets which is disproportionate to his known source of income. The IO after completing the investigation has laid charge sheet. As per the final report, the IO has considered the check period as 03.05.1976 to 28.03.1999. As per the final report, the accused has amassed disproportionate assets to the tune of Rs.73,67,167/-.
10. It is the contention of learned counsel for the petitioner that Section 17 of the P.C.Act mandates, no officer below the rank of the SP has the power to investigate the matter falling under Section 13(e) of the P.C.Act. No doubt the SP has the power to delegate his power to subordinate officers not below the rank of Dy.SP. But the delegation has to be in conformity with the scope and object of Section 17 of the Act and the judicial pronouncements on the issues.
11. In the instant case, it is the Police Sub- Inspector who has prepared the source report. The delegation of power by the SP to his subordinates are not in conformity with the scope and object of proviso to the Section. Further, the power of the vigilance has been extended at the later stage vide notification dated 11.09.2003 empowering the investigation in respect of the offence punishable under the provisions of the P.C. Act. But the KEB vigilance was not empowered to investigate the matter falling under the provisions of P.C. Act till the notification dated 11.09.2003.
12. It is the contention of learned counsel for the petitioner that though the authorization under Section 17 of the P.C. Act is necessary for each of the officers who undertakes the investigation, but in the instant case, the SP has accorded authorization to the officer who has registered the case and thereafter, 3 officers have investigated the matter at the different stage in the absence of authorization under Section 17 of the P.C. Act.
13. These contentions taken by the petitioner’s counsel is a legal issue which goes to the very root of the matter. It involves the question of law and the same has to be decided by the court below relating to the scope and object of the aforesaid provision and so also, the other contentions urged in this petition. Whatever the contention urged in this petition, the same does not require to be considered in detail. But having regard to the legal issue involved in the matter, I deem it just and proper to remand the matter to the Court below for consideration of the issue afresh. Consequently, I have to proceed to pass the following:
ORDER Criminal Revision Petition is hereby allowed. Consequently, the order dated 11.07.2018 passed by the Court below in Spl.C.No.04/2013 on an application filed by the petitioner/accused under Section 227 and 239 of Cr.P.C. is hereby set-aside.
The matter is remitted back to the Court below to consider the application filed by the petitioner/accused under Section 227 and 239 of Cr.P.C., afresh and in accordance with law, by providing an opportunity on both the sides.
Any observation made in this order shall not influence the Court below while considering the said application.
Sd/- JUDGE DKB