IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO.749 OF 2015 (GM-RES) BETWEEN:
SRI ANNARAYA S TALWAR S/O SHIVARAYA AGED ABOUT 46 YEARS POWER OF ATTORNEY HOLDER OF M/S AVINASHI ADS HAVING ITS REGISTERED OFFICE AT BMR LAYOUT, GEDDALAHALLI SANJAYNAGAR MAIN ROAD ABOVE RELIANCE FRESH BANGALORE 560094 (SRI ANNARAYA S TALWAR AND SRI ANNA RAJ ARE SAME) (By Ms. ANNU BHARDWAJ, ADVOCATE FOR SRI: HARIKRISHNA S HOLLA, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SUB INSPECTOR OF POLICE BANGALORE CITY RAILWAY POLICE STATION BANGALORE 560 001 ... PETITIONER 2. SRI PAVIN PONANNA SON OF SOMAPPA AGED ABOUT 34 YEARS NO.810, 8TH FLOOR BARTON CENTRE, M G ROAD BANGALORE 560 001 ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1 SRI: SURESH S.LOKRE, ADVOCATE FOR R2-ABSENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA R/W. SECTION 482 CR.P.C., PRAYING TO CALL FOR THE RECORDS FROM R1, WHICH ULTIMATELY RESULTED IN REGISTERING THE CRIMINAL CASE IN CRIME NO.247/14, AGAINST THE PETITIONER AND QUASH THE COMPLAINT & REGISTRATION OF THE COMPLAINT IN CRIME NO.247/14, DT.22.11.14, ON THE FILE OF THE 4TH ADDL. CHIEF METROPOLITAN MAGISTRATE COURT, BANGALORE CITY AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 403, 406, 409, 120/B, R/W 34 OF INDIAN PENAL CODE IN SBC/RPS VIDE ANN-A & B AND PROHIBIT THE R1 FROM INVESTIGATING CRIME NO.247/14, AS THE R1 HAS NO JURISDICTION EITHER TO RECEIVE A COMPLAINT OR UNDERTAKE INVESTIGATION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner has invoked the jurisdiction of this court under Articles 226 and 227 of the Constitution of India read with section 482 of Cr.P.C., seeking to quash the complaint registered against him in Crime No.247/2014 for the offences punishable under sections 403, 406, 409, 120B read with section 34 of Indian Penal Code.
2. It is stated in the petition that the petitioner as the proprietor of M/s.Avinashi Ads participated in a tender floated by the South Western Railways for display of glow sign and hoarding advertisement under Group II locations of Bangalore Division. The letter of acceptance was issued on 10.01.2013. As per the conditions of the letter of acceptance, license fee for the first year amounting to Rs.6,05,55,555/- was paid. The tender was awarded for a period of five years.
3. The allegation against the petitioner is that the petitioner herein, in collusion with the railway officers, violated the tender terms and conditions of the contract and erected hoarding in more area than awarded under the contract and thereby, committed breach of trust and misappropriation of the railway property. The complaint also contains allegation that for the above purpose, the petitioner has bribed the railway authorities.
4. Learned counsel for the petitioner submits that the second respondent/complainant has no locus standi to lodge the impugned complaint. The complainant was an unsuccessful bidder and the complaint therefore is motivated and calculated to wreak vengeance against the petitioner who is a successful bidder. The complaint does not prima facie disclose the commission of the offence by the petitioner. The allegations made in the complaint do not attract the ingredients of the offences under sections 403, 406, 409, 120B read with section 34 of IPC. Even though allegation of bribe is leveled against the Railaway Officers, FIR is registered without taking prior sanction of the competent authority as required under section 197 of Cr.P.C. Hence, the prosecution launched against the petitioner is illegal and abuse of process of the court and is therefore liable to be quashed at the hands of this court.
5. Learned counsel for respondent No.2 has remained absent.
6. Learned SPP-II would submit that the allegations made against the petitioner prima facie attract the offences alleged against him. He is a private person. Therefore, no prior sanction is necessary either for registration or for prosecution of the petitioner for the alleged offences. Further, the matter being under investigation, it is premature to contend that there is no material to substantiate the allegations made against the petitioner. Therefore, power under section 482 Cr.P.C. cannot be exercised at this stage.
7. It is not in dispute that the South Western Railways had called for a tender for award of contract for display of glow sign and hoarding advertisement under Group II locations of Bengaluru Division. The petitioner herein was a successful bidder and a letter of acceptance was issued to him on 10.1.2013. By virtue of the said letter of acceptance and terms of tender, the petitioner was entitled to erect hoarding in an area of 77880 sq.ft. The petitioner himself has produced a letter at Annexure- ‘G’ indicating that due to feasibility issues, the petitioner could install the structures only in an extent of 49252 sq.ft. Under the said circumstances, the allegations made against the petitioner that the petitioner has erected hoardings in the area which was not covered under the tender documents requires to be investigated into. Therefore, it cannot be said that the allegation made against the petitioner is false and baseless.
8. It is now well settled that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome power under section 482 of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
9. In MACHAVRAO JIWAJIRAO SCINDIA & Others vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others reported in 1988 Cri.L.J. 853, it is held that:
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.”
10. The contention of the learned counsel petitioner that the offences alleged against the petitioner are cognizable only by a Special Judge under the Prevention of Corruption Act cannot be accepted. FIR is registered only for the offences under IPC and not under the provisions of Prevention of Corruption Act.
Furthermore, the said contention is available only to the officials of the South Western Railway. Petitioner is neither an official of the Railways nor a public servant as defined under the Prevention of Corruption Act or under section 21 of IPC. Prior sanction for registration of the case or for trial of the petitioner is not necessary. Hence, the said contention is rejected. I do not find any justifiable reason to interfere with the investigation undertaken by the first respondent. The petition is devoid of merits and is hereby dismissed.
Sd/- JUDGE Bss