IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5879 OF 2013 BETWEEN:
LAKSHMINARAYANA A.S. S/O. LATE SAMBAMURTHY AGED ABOUT 46 YEARS R/O. H.NO.475, O.P.O ROAD, 2ND CROSS, OPP: SMT. LAKKAMMA KALYAN MANTAPPA CHICKABALLAPUR - 562101 (BY SRI SIDDARUDHA B.PUJARI, ADV.,) AND:
1. STATE BY LOKHAYUKTHA POLICE CHIKKABALAPUR DISTRICT CHIKKABALAPUR-562101 2. SRI. MAHADEVA SWAMY S/O. PUTTAMADAIAH AGED ABOUT 56 YEARS OCC: SENIOR LECTURER, DIET CHAMARAJANAGAR – 571313 3. SRI. BELLASHETTY S/O. SIDDASHETTY AGED ABOUT 54 YEARS OCC: DEPUTY DIRECTOR O/O. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS DEPARTMENT …PETITIONER CHAMARAJANAGAR DISTRICT CHAMARAJANAGAR – 571313 4. SRI. R.ASHWATHAIAH S/O. V.R.RAMAIAH AGED ABOUT 53 YEARS OCC: EDUCATION OFFICER O/O. THE AKSHARA DASOHA PUBLIC INSTRUCTIONS DEPARTMENT CHICKABALLAPUR DISTRICT CHICKABALLAPUR - 562101 ... RESPONDENTS (BY SRI VENKATESH S.ARABATTI, SPL.PP FOR R1; SRI RAHUL S.REDDY, ADV., FOR SRI RAVIKUMAR B. ADV., FOR R2, R3 AND R4 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO DIRECT THE 1ST RESPONDENT TO FILE THE CHARGE SHEET AGAINST THE RESPONDENT NOS.2 TO 4 BEFORE THE DIST. AND S.J., CHICKBALLAPUR IN C.R.NO.3/2008.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner herein lodged a complaint before the Karnataka Lokayuktha Police, Chickaballapura, alleging that respondent Nos.2 to 4 herein demanded illegal gratification of Rs.1,50,000/- for relaxation of the age limit of the complainant to secure his employment in Education Department as School Teacher.
2. Based on the said complaint, a trap was arranged and accused No.1 was caught red-handed while receiving part of the bribe amount of Rs.10,000/- on 27.02.2008. Trap panchanama was prepared. Respondent No.2/accused No.1 was arrested and was produced before the Court and was enlarged on bail. During the course of investigation, the relevant documents in proof of the charges were collected. However, during investigation, Investigating Officer recorded the statement of shadow witness on 22.07.2009, wherein, the shadow witness retracted from his earlier statement and asserted that the alleged bribe money was not demanded by accused No.1, instead the complainant himself kept the bundle of currency notes on the table of accused No.1 and when accused No.1 pushed the said currency notes, there was altercation between the complainant and accused No.1.
Based on this statement, the Investigating Officer submitted a ‘B’ summary report before the court.
3. The petitioner herein filed his protest petition.
However, he failed to let in his sworn statement and did not examine any witness on his behalf. Hence, considering the ‘B’ report, by the impugned order dated 19.08.2013, the Principal District and Sessions Judge, Chickballapur, accepted the ‘B’ report and consequently, dismissed the complaint lodged by the petitioner and directed the Lokayuktha Police to refund Rs.10,000/- to the complainant.
4. Aggrieved by the said order, the petitioner has preferred this petition seeking to set aside the impugned order.
5. Heard the learned counsel for the petitioner, learned counsel appearing for respondent Nos.2 to 4 and learned Special Public Prosecutor appearing for respondent No.1.
6. Learned counsel appearing for the petitioner submitted that due to unavoidable circumstances, the complainant could not examine himself in support of protest petition filed by him. However, in the protest petition, he had brought on record the circumstances to show that the ‘B’ report submitted by the Investigation Officer was contrary to the records. Learned counsel has pointed out that during the trap panchanama the shadow witness has categorically admitted that the bribe money was paid by the complainant on the demand made by accused No.1. FSL report was positive. The shadow witness during the trap panchanama has supported the case of the prosecution and has stated that the said bribe amount was paid on the demand of accused No.1. It is only after one year five months, after the trap proceedings, the shadow witness has given a contrary version which could not have been considered as the basis to disbelieve other positive evidence produced by the complainant and hence, the reasoning assigned by the trial Court in accepting the ‘B’ report being contrary to the material on record has resulted in miscarriage of justice. The material on record clearly establishes the offences punishable under Sections 7 and 13(1) (d) of Prevention of Corruption of Act. Hence, the impugned order is liable to be quashed at the hands of this Court.
7. Opposing the above submissions, learned counsel appearing for respondent Nos.2 to 4, would submit that the entire case of the prosecution is demolished by the shadow witness who has unequivocally stated in his statement under Section 161 of Cr.P.C. that the bribe money was kept on the table by the complainant himself without any demand. Hence, prosecution of accused Nos.1 to 3 is unjust and cannot be proceeded with, hence, there is no reason to interfere with the impugned order.
8. Considered the submissions and perused the records with reference to ‘B’ report submitted by the Investigating Officer.
9. The records indicate that a successful trap was conducted by respondent No.1- Lokayukta. The trap mahazar indicate that all the formalities of trap were followed and after due instructions, the shadow witness and the complainant were sent to the office of accused No.1. There is consistent material to show that accused No.1 demanded the amount from the complainant and pursuant to the said demand, the complainant paid the said amount into the hand of accused No.1 and the same was received by accused No.1 and he placed the same on the table. The shadow witness has reiterated this fact which is reflected in the panchanama prepared during trap proceedings. It is only in his statement which was recorded more than one year five months after the date of trap, the shadow witness has resiled from his previous version and has given totally a different story stating that the amount was kept on the table by the complainant himself. The manner in which this statement is introduced after a gap of nearly 1½ years casts serious doubt about the propriety of the investigating officer and the shadow witness. Nonetheless, the version narrated by the shadow witness in his further statement is not corroborated or supported from other material produced before the Court by the Investigating Officer. Under the said circumstances, solely on the basis of the inconsistent statement attributed to the shadow witness, the Investigating Officer could not have come to the conclusion that the material collected during investigation did not make out the ingredients of offences under Sections 7, 13 (1) (d) r/w 13(2) of Prevention of Corruption Act. I find clear incriminating material in proof of demand as well as for acceptance of bribe by accused No.1. The FSL report also corroborates the case of the prosecution. The hand wash of accused No.1 turned ‘pink’ during trap.
Whether the said evidence could outweigh the further statement of the shadow witness, could be decided only during trial. As there was sufficient material on record, merely on the basis of retracted statement of the shadow witness, the Investigating Officer could not have arrived at the conclusion that the material produced by the prosecution was not sufficient to prima-facie make out the offences alleged against accused No.1.
10. The opinion arrived at by the Investigating Officer is contrary to the material on record. The Investigating Officer has even gone to the extent of stating that an application was submitted by the complainant for the post of Assistant Teacher, claiming to be Ex- Servicemen, but the records indicate that the complainant did not seek appointment under ‘reserved’ category. All these facts indicate that in order to bail out the accused persons, the Investigating Officer has submitted a false ‘B’ report by fabricating false evidence and suppressing the positive material available on record in proof of the charges levelled against accused No.1.
11. In the face of the above material, it was incumbent on the learned Sessions Judge to consider the material produced alongwith the charge sheet and to arrive at an independent conclusion whether the opinion arrived at by the Investigating Officer could be sustained in the backdrop of the material collected during the investigation. Unfortunately, the learned District & Sessions Judge, Chikkaballpur has not adverted his mind to the material produced along with the charge sheet, instead he has been carried away by the opinion expressed by the Investigating Officer and has endorsed the said opinion without even looking into the material collected by the Investigating Officer. If only the Sessions Judge had looked into the contents of the trap mahazar and the statements given by the other witnesses soon after the trap of accused No.1 and the explanation offered by accused No.1, in my view, the learned Sessions Judge would not have accepted the ‘B’ report. Impugned order reveals that the learned Sessions Judge has miserably failed to discharge his duties judiciously. Merely on the ground that the complainant has not examined himself or other witnesses in support of the protest petition, the learned Sessions Judge could not have accepted the ‘B’ report without considering the ‘B’ report and the material collected during the investigation. Law is now settled that the question of considering the contents of the protest petition and the sworn statement would arise only after the Magistrate or the Special Judge decides to reject the summary report. In this context, it may be apt to refer to the guidelines laid down by the Hon’ble Supreme Court in the case of ‘KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL’ reported in [1980] SCC [2] 91 which is followed by this Court in ‘DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER’ reported in ILR 2018 KAR 1725 and it is held as under:-
“5. xxxxxxxxxxxxxxxx It is well recognized principle of law that, once the police submit ‘B’ Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of ‘B’ Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
i) “The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.P.C, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon’ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.
ii) If the court is of the opinion that the material available in the ‘B’ Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of ‘B’ Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the ‘B’ Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of ‘B’ report, the court has to reject the ‘B’ Summary Report.
iv) After rejection of the ‘B’ Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.”
In the light of the above position of law and the factual circumstances discussed above, the impugned order dated 19.08.2013 passed by the learned Sessions Judge cannot be sustained.
Accordingly, the petition is allowed. The impugned order dated 19.08.2013 passed by the learned District and Sessions Judge, Chickballapur in C.R.No.3/2008 is set- aside. The ‘B’ report submitted by the Investigating agency is rejected. The learned Sessions Judge shall proceed to record the sworn statement of the complainant and his witnesses and thereafter proceed in accordance with law in the light of the guidelines laid down by the Hon’ble Supreme Court in the case of ‘KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL’ reported in [1980] SCC [2] 91 which is followed by this Court in ‘DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER’ reported in ILR 2018 KAR 1725.
Sd/- JUDGE HJ/mn/-