IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL Criminal Revision Petition No.754/2019 C/W Criminal Revision Petition No.1306/2019 IN Criminal Revision Petition No.754/2019: BETWEEN:
M.Muralidhara S/o K. Muniswamy Aged about 51 years Occ: Service, R/o No.42, 10th Main Cross Road Malleshwaram, Bengaluru-560 003.
Also at: PWD, Port Inland Water Transport Department, Division Office, Chikkaballapura District Chikkaballapura.
...Petitioner (By Sri C.H.Jadhav, Senior Counsel for Smt. Rashmi Jadhav & Sri Harsha M., Advocates) AND:
State of Karnataka by Lokayukta PS, Chickballapur Represented by Special Public Prosecutor High Court of Karnataka Bengaluru-560 001.
...Respondent (By Sri B.S.Prasad, Special Public Prosecutor) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 15.04.2019 in Spl.C.No.15/2016 passed by the learned Principal District and Sessions Judge, Chickballapur and consequently discharge the petitioner thereon.
IN Criminal Revision Petition No.1306/2019: BETWEEN:
1. M.Muthuraju Occ: Audit Officer (Retd.), S/o late Mutharayappa Aged about 60 years R/o No.30, 4th Main Road, Ganganagara Extension R.T.Nagar Post, Bengaluru-560 032.
2. P.V.Srinivasalu S/o Venkataravanappa Occ: Service Aged about 42 years R/o Kotturu, Chakavelu Post Chellur Hobli, Bagepalli Taluk ...Petitioners (By Sri C.H.Jadhav, Senior Counsel for Smt. Rashmi Jadhav & Sri Harsha M., Advocates) AND:
State of Karnataka By Lokayukta PS, Chickballapur Represented by Special Public Prosecutor High Court of Karnataka Bengaluru-560 001.
...Respondent (By Sri B.S.Prasad, Special Public Prosecutor) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 15.04.2019 in Spl.C.No.15/2016 passed by the learned Principal District and Sessions Judge, Chickballapur and consequently discharge the petitioners thereon.
These Criminal Revision Petitions coming on for Orders this day, the Court made the following:
O R D E R Criminal revision petition No.754/2019 has been filed by the petitioner/accused No.1 and criminal revision petition No.1306/2019 has been filed by the petitioners/accused Nos.2 and 3 challenging the order passed by the Court of Principal District and Sessions Judge, Chikkaballapura in Special Case No.15/2016 dated 15.04.2019.
2. I have heard Sri. C.H. Jadhav, learned senior counsel appearing for Smt. Rashmi Jadhav and Sri.
B.S. Prasad, learned Special Public Prosecutor for respondent – Lokayukta.
3. Brief facts of the case are that accused No.1 was working as an executive Engineer in Public Works Ports and Inland Water Transport Department, accused No.2 was working as an accountant and accused No.3 was a group ‘D’ employee. On the basis of the information received by Lokayukta on 17.09.2014, they registered a case in Crime No.11/2014 for the offence punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred as ‘the Act’). Thereafter, after following the procedure on the information, the bribe amount would be carried in a Government Vehicle provided to the petitioner. They obtained a search warrant and conducted a raid on 18.09.2014 and when they inspected the official car and the office of the petitioners/accused, no incriminating material found. At that time, an amount of Rs.22,500/- was seized from accused No.2 and an amount of Rs.16,490/- was seized from accused No.3. On the same day, at about 5.00 p.m., when they checked the official car, which was parked in front of the house of accused No.1, they found a sum of Rs.2,46,000/- the same was recovered and after investigation, the charge sheet has been filed. Thereafter, the special Court took cognizance and secured the presence of the accused and when the case was posted for hearing before charge, at that time, an application came to be filed under Section 227 of Cr.P.C., to discharge. After hearing the learned counsel appearing for both the parties, the said application came to be dismissed.
4. The main grounds urged by the learned senior counsel are that in order to make a search, the admitted procedure as contemplated under the law has not been followed. It is his further submission that to register a case under Section 13(e) of the Act is different and the procedure adopted for the purpose of filing the charge sheet as against the accused under Section 13(1)(c) and (d) of the Act is different. It is his further submission that in order to file a case under Section 13(1)(e) of the Act, the accused must be a public servant and the nature and extent of the pecuniary resources of property found in his possession, his known source of income and as such resources or properties found in possession of the accused must be disproportionate to his known source of income and he further added that the assessment year has to be specifically stated in order to constitute an offence or the check period. But in the instance case on hand, no such material has been produced in the charge sheet. What is the check period for which the assessment has to be made and what is the disproportionate income, which has been found, under such circumstance, the accused is entitled to be discharged. In order to substantiate his said contention, he relied upon the decision of the Hon’ble Apex Court in the case of V.K. Puri v. CBI reported in (2007) 6 SCC 91. It is his further submission that the accepted procedure if it is not followed, then under such circumstance, the accused will be protected and so he is entitled to be discharged. It is his further submission that in order to constitute an offence under Section 13(1)(c) and (d) of the Act, there must be a demand and specific averments must be made in the charge sheet that the accused demanded and accepted the said amount. Even if the entire charge sheet material, they are seen, no grounds have been made out to constitute any of the offence as contemplated under the said Act. Under such circumstance, they are entitled to be discharged for the offences. It is his further submission that the trial Court has not applied its mind and has not taken into consideration the documents produced before it. Though the material produced by the accused clearly goes to show that the said amount has been planted by the complainant himself, that aspect has not been properly appreciated by the accused. It is his further submission that the special Court is not merely Post Office or mouth piece of the prosecution to come to a conclusion that what has been stated by it. The Court is required to evaluate the material and documents produced by the prosecution and thereafter take appropriate steps. It is his further submission that as per Section 227 of Cr.P.C. even the material produced can also be taken into consideration in order to ascertain the truth and to meet the ends of justice. He further submitted that by taking into consideration the prima facie material, no material is there or no incriminating material is produced so as to constitute any one of the offence as contended by the prosecution. On these grounds, he prayed to allow the petition and to discharge the accused.
5. Per contra, learned Special Public Prosecutor vehemently argued and submitted that the learned special judge after taking into consideration of the material placed on record has come to a right conclusion and has rightly dismissed the application. The charge sheet material alone has to be seen for the purpose of considering the application filed under Section 227 of Cr.P.C. Any material, if the accused is intending to produce that can be produced only at the time of the evidence but not at this pre-matured stage. He further submitted that under Section 13(1)(d) of the Act, the word used is at that time, it includes that it is not for the check period but if any illegal means or any amount is found under such circumstance, the provisions of Section 13(1)(e) of the Act can be made applicable. It is further submitted that whether the petitioners/accused have committed an offence or not is a matter, which has to be considered and decided only at the time of trial but not at this pre-matured stage. It is his further submission that it is for the accused to explain, how and in what manner, he has come in possession of the said amount. Until and unless the trial is held, it cannot be held that the prosecution has not made out any good grounds so as to discharge the accused. On these grounds, he prayed to dismiss the petitions.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. As could be seen from the records and the submissions made by the learned counsel appearing for both the parties, it is the contention of the learned Senior counsel for the petitioner/accused No.1 that when a search has been made for the first instance, though no incriminating material has been seized but subsequently, an amount of Rs.2,46,000/- has been seized and the said amount is planted by the persons, who are there at the helms of the affair. It is his further submission that the accused No.1 has filed an application and produced the CD, which clearly indicates that the said amount has been planted by the team of persons, who were there. That itself clearly goes to show that he is innocent of the alleged offence. I have carefully and cautiously gone through the said submissions. The main contention is that CD produced indicates that the amount has been planted. But it is well settled proposition of law that while considering the point of discharge of the accused, the materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage, no additional documents produced by the accused to be considered. It is held by the Hon’ble Apex Court in the case of Sheoraj Singh Ahlawat and Others v. State of Uttar Pradesh and Another reported in (2013) 11 SCC 476 wherein at paragraph No.18 it has been observed as under:
“18. In State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] this Court was considering whether the trial court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words: (SCC pp. 577 & 579, paras 18 & 23) “18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. … Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now.
It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression ‘hearing the submissions of the accused’ cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.
*** 23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material.”
(emphasis supplied) 8. Keeping in view, the contention of learned Senior counsel is not sustainable in law. The second contention is that as per Section 227 of Cr.P.C., documents and material produced has to be seen. For the purpose of brevity, I quote Section 227 of Cr.P.C., which reads as under:
“227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”
9. On close reading of the said provision, the Court has got ample power to discharge the accused by seeing the prima facie case as against the accused as to whether material is there to frame the charge or not? But while considering the said material, it is well settled proposition of law that the documents and other material which has been produced by the accused, it cannot be made use off. The words in the said section itself indicates that upon consideration of the records of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution, the Court passed an appropriate order that word itself clearly goes to show that the documents which are produced by the accused cannot be looked into at that point of time. Under such facts and circumstances, I am of the considered opinion that at this juncture, though the Court below has played the CD and looked into the said documents, but even then, no answer has been given to the said facts. Under such circumstance, there is no illegality or irregularity in not giving any finding.
10. The second contention which has been taken up by the learned counsel for the petitioners/accused is that the procedure that established by law has not been followed during the course of investigation. This point came up before the Hon’ble Apex Court in the case of V.K.Puri (quoted supra) at paragraph Nos.12, 13 and 20, it has been observed as under:
“12. A distinction exists between a case filed under Sections 13(1)(c) and 13(1)(d) of the 1988 Act, on the one hand, and Section 13(1)(e) thereof, on the other.
13. Ingredients of the offence under Section13(1)(e) of the 1988 Act are:
(i) the accused is a public servant;
(ii) the nature and extent of the pecuniary resources of property found in his possession;
(iii) his known sources of income i.e. known to the prosecution;
(iv) such resources or properties found in possession of the accused were disproportionate to his known sources of income.
20. In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence.”
11. On going through the above said proposition, it indicates that in order to file a case under Section 13(1)(e) of the Act, the procedure laid down by the Hon’ble Apex Court has to be followed and all that is the ingredients of the offence as stated therein has to be considered. Though it is contended by the learned Special Public Prosecutor that any time during the period of his office includes at any time, as could be seen from Section 13(1)(e) of the Act, the sentence itself clarifies that at any time during the period of his office means, the prosecution has to specifically say what is check period for which, disproportionate source of income was made out. Merely because of some amount has been found in the possession of the official, under such circumstance, it cannot be held that he is guilty of the offence punishable under Section 13(1)(e) of the Act.
12. Be that as it may. Even if the said amount if it is said to be a disproportionate source of income but there is no material as to what is the source of income and how the said amount constitute a disproportionate income in this behalf.
13. Insofar as accused No.2 is concerned, he has been found with Rs.22,500/- and accused No.3 has been found with Rs.16,490/- under the said facts and circumstances, it cannot constitute a disproportionate income. If such type of attitudes are encouraged, under such circumstances, no man will be spared by the respondent-lokayukta and they will start register the cases as against the innocent persons. Without there being any material, the procedure established by law has to be taken into consideration. If the said procedure is not followed, then under such circumstances, it is nothing but an abuse of process of law. In that light, I am of the considered opinion that the arguments advanced by the learned Senior counsel in this behalf appears to be justifiable.
14. I have also carefully and cautiously gone through the other material, which has been produced in this behalf.
15. I am conscious of the fact that at the time of considering the application under Section 227 of Cr.P.C., the Court below is having an undoubted power to sift and weight the evidence for a limited purpose for finding out as to whether there is a prima facie case made out as against the accused to frame the charge or not?
16. Even the Court cannot act as a Post Office and it will not be a mouth piece of the prosecution and it has to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence or not? This proposition of law has been laid down by the Hon’ble Apex Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation reported in (2010) 9 SCC 368 wherein at paragraph No.21 which has been observed as under:
“21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”
17. Taking into consideration of the above said factual matrix, the Court has to take into consideration the facts that whether the material placed before the Court discloses a suspicion, then under such circumstance, the accused is entitled to be discharged. But if there is a grave suspicion as against the accused, then under such circumstances, the Court is justified in framing the charge. This proposition of law has also been laid down by Hon’ble Apex Court in the case of UNION OF INDIA Vs. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979) 3 SCC 4 at paragraph No.10 it has been observed as under:
“Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
18. Keeping in view the said ratio laid down in the above decisions, it is contended by the prosecution that the accused persons have misappropriated and converted the said amount in official discharge of duty and if doing so, they adopted any corrupt or illegal means, under such circumstance, it is going to attract the provisions of Section 13(1)(C) and (d) that is the matter which has to be considered and appreciated only at the time of trial.
19. On close reading of the material, it indicates that there is a prima facie material as against the petitioners/accused insofar as the framing of charge under Section 13(1)(c)and (d) is concerned.
20. Taking into consideration of the above said facts and circumstances, the petitioners/accused have made out a case insofar as the offence under Section 13(1)(e) is concerned and insofar as the offence under Section 13(1)(c) and (d) is concerned, no case has been made out.
21. In the light of discussions held by me above, both the revision petitions are partly allowed and the petitioners/accused Nos.1 to 3 have been discharged for the offence punishable under Sections 13(1)(e) is concerned and insofar as Section 13(1)(c) and (d) is concerned, the order of the trial Court is confirmed.
I.A. No.1/2019 in Crl.R.P. No.754/2019 and I.A.
No.2/2019 in Crl.R.P. No.1306/2019 do not survive for consideration. Accordingly, they are disposed off.
Sd/- JUDGE VBS