IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.828 OF 2019 C/W CRIMINAL REVISION PETITION NO.829 OF 2019, C/W CRIMINAL REVISION PETITION NO.830 OF 2019 IN CRL.RP.NO.828/2019 BETWEEN:
1. Sri.B.G.Prakash Kumar, S/o late B.R.Gopal Gowda, Aged about 63 years, Retired Executive Engineer, R/a No.139, 10th main road, B.C.C. Layout, Vijayanagara, Bengaluru – 560 010.
2. Sri.Y.M.Muniraju, S/o late Munishamappa, Aged about 63 years, Retired Assistant Executive Engineer No.935, 64th Cross Road, 5th Block, Rajajinagara, Bengaluru – 560 010.
3. Sri.M.K.Hairsh, S/o late M.Kodhandaram, Aged about 57 years, Assistant Engineer, R/a No.302, 1st Cross Road, Gangothri Apartments, Uttarahalli Road, Bengaluru – 560 061.
(By Sri.Hanumantharaya D, Advocate) AND:
B.F.Patil Joint Commissioner, (Administration) BBMP Head Office, Bengaluru.
Rep. by SPP, High Court Building, Bengaluru – 560 001.
(By Sri.V.M.Sheelvant, SPP-1) ...Petitioners ...Respondent This Criminal Revision Petition is filed under Section 397 of Cr.P.C read with Section 401 of Cr.P.C praying to examine the legality, propriety and correctness of the proceedings of the impugned order passed by the court below and set aside the impugned order on the discharge application filed by the accused No.1 to 3 under Section 227 of Cr.P.C in Spl.C.C.No.106/2018 dated 19.06.2019 passed by the Court of LXXXI Additional City Civil and Sessions Judge, CCH-82, Bengaluru (Special Court exclusively to deal with the criminal case related to elected MP’s/MLA in the State of Karnataka) and pleased to discharge the accused No.1 to 3 as prayed for therein.
IN CRL.RP.NO.829/2019 BETWEEN:
1. Sri.B.G.Prakash Kumar, S/o late B.R.Gopal Gowda, Aged about 64 years, Retired Executive Engineer, R/a No.139, 10th main road, B.C.C. Layout, Vijayanagara, Bengaluru – 560 010.
2. Sri.Y.M.Muniraju, S/o late Munishamappa, Aged about 64 years, Retired Assistant Executive Engineer No.935, 64th Cross Road, 5th Block, Rajajinagara, Bengaluru – 560 010.
3. Sri.M.K.Hairsh, S/o late M.Kodhandaram, Aged about 48 years, Assistant Engineer, R/a No.302, 1st Cross Road, Gangothri Apartments, Uttarahalli Road, Bengaluru – 560 061.
(By Sri.Hanumantharaya D, Advocate) AND:
B.F. Patil Joint Commissioner, (Administration) BBMP Head Office, Bengaluru.
State of Karnataka by CID Police, Bengaluru.
...Petitioners Rep. by SPP, High Court Building, Bengaluru – 560 001.
(By Sri.V.M.Sheelvant, SPP-1) ...Respondent This Criminal Revision Petition is filed under Section 397 of Cr.P.C read with Section 401 of Cr.P.C praying to set aside the impugned order dated 19.06.2019 passed by the Court of LXXXI Additional City Civil and Sessions Judge, CCH-82, Bengaluru (Special Court exclusively to deal with the criminal cases related to elected MP’s/MLA in the State of Karnataka) in Spl.C.C.No.473/2018 on the discharge application filed by accused No.1 to 3 under Section 227 of Cr.P.C.
IN CRL.RP.NO.830/2019 BETWEEN:
1. Sri.B.G.Prakash Kumar, S/o late B.R.Gopal Gowda, Aged about 63 years, Retired Executive Engineer, R/a No.139, 10th main road, B.C.C. Layout, Vijayanagara, Bengaluru – 560 010.
2. Sri.M.K.Nanjaiha, S/o Karigowda, Aged about 63 years, Retired Assistant Executive Engineer Malleshwaram Sub-Division, Malleshwaram Division, BBMP Benglauru, R/a No.465, 6th Main Road, Vijayanagara 1st Stage, Mysuru – 17.
3. Sri.N.Lokesh, S/o Nanjundappa, Assistant Engineer, Malleshwaram Division, Bengaluru.
R/a No.117, 5th Main Road, Veerabhareshwara Nilaya, Defence Layout, Vidyaranyapura, Bengaluru – 560 009.
(By Sri.Hanumantharaya D, Advocate) AND:
B.F.Patil Joint Commissioner, (Administration) BBMP Head Office, Bengaluru.
State of Karnataka By C.I.D. Police, Bengaluru.
Rep. by SPP, High Court Building, Bengaluru – 560 001.
(By Sri.V.M.Sheelvant, SPP-1) ...Petitioners ...Respondent This Criminal Revision Petition is filed under Section 397 of Cr.P.C read with Section 401 of Cr.P.C praying to set aside the impugned order on the discharge application filed by the accused No.1 to 3 under Section 227 of Cr.P.C in Spl.C.C.No.522/2018 dated 19.06.2019 passed by the Court of LXXXI Additional City Civil and Sessions Judge, CCH-82 Special Court exclusively to deal with criminal case related to elected MPs and MLS’s in the State of Karnataka and pleased to discharge the accused No.1 to 3 as prayed for therein.
These Criminal Revision Petitions coming on for Admission, this day, the Court made the following:
O R D E R The Crl.R.P. No.828/2019 has been filed by the petitioner/accused Nos. 1 to 3 against the order in Special C.C. No.106/2018. Crl.R.P. No.829/2019 has been preferred by the accused Nos.1 to 3 challenging the order in Special C.C. No.473/2018. Crl.R.P. No.830/2019 has been filed by the petitioner/accused Nos. 1 to 3 challenging the order passed in Special C.C. No.522/2018 respectively dated 19.06.2019 passed by the LXXXI Additional City Civil and Sessions Judge and Special Court exclusively to deal with RC case related to MLAs and MPs in the State of Karnataka.
2. I have heard the learned counsel for the petitioner/accused in all the cases. So also the learned Special PP for the respondent State.
3. Before going to consider the contentions which have been raised by the learned counsel appearing for parties, I feel it just and proper to place it on record the factual matrix of the case of the complainant in nutshell that an article was published in Kannada daily newspaper on 20.10.2011 about the illegal and mal-administration of the work in BBMP. On the basis of the said publication, an investigation was ordered and the investigation revealed that BBMP during the period 2008-2009 to 2011-2012 took various civil works in Engineering department and at that time accused Nos.1 to 3 have been placed in charge of the said work and were entrusted in respect of supervising the quality of work and ensure regarding measurement in executing the work and to report the same to see the work is completed within the stipulated time. The investigating agency conducted the investigation and came to know that while implementation of the work in the jurisdiction of Malleshwaram, Gandhinagara and Rajarajeshwari Nagara, there were irregularities and illegalities committed by the said officials contractor and more than Rs.500 Crores has been misappropriated and mis-utilised by the accused persons. It is further alleged that the measurement of the work and the use of the quality materials in carrying out the work are not in accordance with specification and the norms sanctioned by the technical division and the accused persons have failed to discharge their duties entrusted to them. After holding a thorough enquiry, charge sheet came to be filed as against the accused persons 1 to 4. After appearance of the accused, the accused persons filed an application under Section 227 of Cr.P.C., to discharge from the offences alleged against them. The learned special Judge after hearing learned counsel appearing for the parties and the Special Public Prosecutor dismissed the said application by order dated 19.06.2019. Challenging the same the petitioner- accused are before this Court.
4. The main ground urged by the learned counsel for the petitioners-accused is that the complaint filed by Assistant Commissioner of BBMP (Administration) to Bangalore Metropolitan Task Force (hereinafter referred to as ‘BMTF’ for short) police station is not maintainable in law and BMTF has no jurisdiction to entertain the said complaint as it is not a police station to take cognizance of the offences punishable under Indian Penal Code. It is his further submission that this Court in the case of SRI. SRINATH, MANGALURU VS. STATE OF KARNATAKA, URBAN DEVELOPMENT DEPARTMENT REPRESENTED BY PRINCIPAL SECRETARY AND OTHERS reported in ILR 2018 KAR 4815 has held that BMTF is not having any such power of police station to take the cognizance of any offence under Indian Penal Code and as on the date when the cognizance was taken they were not having any authority to register the case. The said aspect has not been properly considered and appreciated by the trial Court. It is his further submission that no documents have been produced to substantiate the case of the complainant. Even if all the documents if they have been taken into consideration, there is no material or documents to show that there was deficiency of the work conducted by the accused persons. It is his further submission that the documents produced clearly goes to show that the work which has been conducted confirms to the specification requirement and the said gradation which has been tested the same has been given by the expert. It is his further submission that the petitioners-accused Nos.1 to 3 have discharged their work in accordance with law and there is no breach of trust and there is no documents produced to show that the work done was not in accordance with specification.
5. It is his further submission that the said work has been got done in 2008-2009 and the complaint has been filed after four years and the spot inspection has been done after four years. As per the Earnest Money Deposit (EMD) Contract Certificate, the defect liability was only for a period of two years. When the inspection has been done after four years of carrying out of the work, even then under such circumstances there will be some erosion and some pot holes and other spots and other things that they will get damaged, under such circumstances the spot inspection will not be in accordance with the specification. It is his further submission that the width and length, if it is taken into consideration there is no dispute with regard to the width and length. But even the investigation team itself has given its opinion that the asphalt and other things have not been taken into consideration at the time of measurement and the said fact if it is taken into consideration there is no variation of the measurement and other material. It is his further submission that the bitumen extraction test conducted on the mix material obtained from various sample spots, out of them six samples were taken, three samples were prepared and they were as per the rate required for testing and they confirmed to the specification requirement. When the said fact has been brought on record then under such circumstances, court below ought to have discharged the accused holding that there is no material as against the petitioner-accused. It is his further submission that the conduct of the accused does not constitute any specific offence. The said charge sheet has been filed only on suspicion and there is no strong suspicion to hold that the petitioner-accused have committed the alleged offence. It is his further submission that in order to constitute the offence, the prosecution has to show that the work had been got executed and the payment made to the contractors have been done without there being any proper verification. If there is no clinching evidence produced to prove the charges against the accused then under such circumstances, only on surmises and conjectures the court cannot hold that there is material as against the accused and in this regard the court below ought to have discharged the accused by holding that there is no material to frame the charge. In order to substantiate his argument he relied upon the decision in the case of C.CHENGA REDDY AND OTHERS VS. STATE OF ANDHARA PRADESH reported in (1996) 10 SCC 193.
It is his further submission that the Court below has not taken into consideration the word ‘entrustment”. If there is no entrustment of the property then under such circumstances, the provisions of Section 405 of IPC is not attracted and there is no question of taking cognizance for the alleged offence. In order to substantiate his contention he relied upon the decision in the case of CENTRAL BUREAU OF INVESTIGATION Vs. DUNCANS AGRO INDUSTRIES LTD. reported in (1996) 5 SCC 591. It is his further submission that the basic ingredients of the offence punishable under Section 364, 367, 363 of IPC are to be established and there should be forgery and false documentation as per Section 464 of IPC. Without establishing the said fact, framing the charge for the alleged offences is not maintainable. In order to substantiate his contention he relied upon a decision in the case of MOHAMMED IBRAHIM VS. STATE OF BIHAR AND ANOTHER reported in (2009) 8 SCC 751. It is his further contention that the charges have been framed against the accused only when available material is produced before the Court to substantiate the said fact. Mere suspicion as to the commission of the offence is not sufficient and if mere suspicion is there, then benefit has to be given to the accused. In order to substantiate his argument he relied upon the decision of Madras High Court in the case of STATE REPRESENTED BY Vs. K.P. JAI XAVIER. It is his further submission that there is no valid sanction to prosecute the accused Nos.1 and 2. It is his further submission that under Section 197 of CR.P.C., and 19 of Prevention of Corruption Act 1947, that the sanction is must and without sanction the prosecution initiated against the accused is not maintainable and on that point alone that the accused persons are entitled to be discharged. It is his further submission that when there is delay in filing the complaint and the investigation so which has been conducted that itself will be a ground to discharge the accused. On these grounds he prayed to allow the petition and to set aside the impugned order and to discharge the accused.
6. Per contra, the learned Special public prosecutor vehemently argued and submitted that there is no dispute with regard to work which has been entrusted to the accused-persons and they have carried out the said work. The only dispute which has been raised in the case is that the quality of the work which has been done has not been done as per the specifications and the contract guidelines. It is his further submission that the technical vigilance Committee was appointed to investigate the matter. The said committee investigated and filed the report to the effect that the said work which has been done is not in accordance with the specification which have been made. The technical report has taken the measurement at the site work done by the accused No.4 with the assistance of accused Nos.1 to 3 and in their report they have specifically mentioned that there was a financial loss to the Government/BBMP in respect of the said work to the tune of Rs.4,64,570/- in Crl.R.P.No.828/2019, Rs.1,72,689/- in Crl.R.P.NO.529/2019 and Rs.8,24,819.41/- in Crl.R.P.No.830 respectively. It is his further submission that the top layers of the quote have taken into consideration along with the measurement and calculation that there is some deficiency found in the said report and on the basis of the said report the charge sheet has been filed. It is his further submission that there is a prima facie material to frame the charge as against the accused when once expert committee has come to the conclusion that there is some financial loss then the said matter has to be decided by leading the evidence. At this juncture, at the threshold it cannot be held that there is no material as against the accused to discharge the accused against the charges leveled as against the accused. It is his further submission that accused-petitioners are entitled to be discharged only if the entire material or the charge sheet if it is accepted without there being any rebuttal, even if there is no material then the court can discharge the accused. But in the instance case on hand, there is no such material to hold that accused- petitioners are innocent and there is no material as against the accused persons. It is his further submission that earlier the similar grounds have been urged in respect of the jurisdiction of BMTF in writ petition No.7246-50/2013 and other connected matters and the accused-petitioners have also approached this court and this court has already given a finding that the BMTF is having jurisdiction to investigate the matter and register a case and at this juncture the accused-petitioner cannot contend that BMTF is not having any jurisdiction and the accused-petitioner are entitled to be discharged. It is his further submission that Section 19(1)(b) of Prevention of Corruption Act, 1988, which was amended on 26.07.2018, the words “who is employed” was substituted by the words “who is employed, or as the case may be, was at the time of commission of the alleged offence employed”. But in the instant case on hand, charge sheet has been filed respectively on 20.01.2018, 18.06.2018 and 02.07.2018 in C.C.No.522/2018, prior to the amendment made to Section 19(1)(b) of Prevention of Corruption Act, 1988. It is his further submission that the said Section is prospective in effect and the said Section cannot be given retrospective effect until and unless there is a specific mention in the said Section. It is his further submission that the said provision will not come to the aid of the accused to distract from the said fact. It is his further submission that the court below after considering the material placed on record has rightly come to a right conclusion and has rightly rejected the application. On these grounds, he prays to dismiss the petition.
7. I have carefully and cautiously gone through the said submissions made by the learned counsel appearing for the parties and perused the records.
8. The first and foremost contention taken up by the learned counsel for the petitioners-accused is that the BMTF police station is not a police station and the registration of the case and conducting the investigation by BMTF itself is not sustainable in law and on the same ground the accused petitioners are entitled to be discharged. In order to substantiate the said contention, they relied upon the decision of this Court in the case of Srinath Mangaluru quoted supra. But during the course of argument it has been brought to the notice of this Court that the accused- petitioners have approached this Court in Writ petition No.7246-7250/2013 therein a similar issue was raised and in the said writ petition the co-ordinate Bench of this Court has held that the said BMTF is a police station and it has got jurisdiction and that the said decision went against the petitioner-accused. Admittedly, they have challenged the said issue before the Hon’ble Apex Court, same was dismissed and the said issue has been finalized by the order of this Court dated 26.09.2019. When it is brought to the notice of this Court that the said Judgment of this Court was challenged before the Hon’ble Apex Court and the same has been dismissed by confirming the order. In the light of the said discussion, the first contention of the learned counsel for the accused that the BMTF is not having any jurisdiction to register and investigate the case and file the charge sheet does not hold any water.
9. I have carefully gone through the decision of this Court quoted supra and the specific decisions and the said decisions will not come to the help of the accused-petitioner. In that light, the said contention is not acceptable.
10. The Second contention which has been taken up by the counsel for the petitioners-accused is that the sanction has been obtained in so far as petitioner No.3 is concerned but the investigating officer has not sought for any sanction either under Section 197 of Cr.P.C., or under Section 19(b) of the Prevention of Corruption Act. During the course of argument it is contended that though the said argument has been advanced before the court below, without looking into the said facts and circumstances, even the court below has not answered the said issue and has erroneously passed the said order.
11. I have carefully and cautiously gone through the said submission along with the application filed for discharge and the order of the trial Court.
12. If the entire order of the trial Court if it is looked into nowhere the court below has touched the point and answered the said issue. Under the said facts and circumstances I am of the considered opinion that it is better to keep open to the court below to consider the said issue once again and write a proper order by application of mind to the issues raised by the learned counsel appearing for the parties before the court below. In that light, the matter requires to be remitted to the court below by keeping open all the issues except the jurisdiction BMTF to the trial Court, it is going to meet the ends of justice.
13. In that light, the orders in Special C.C.No.473/2018, Special C.C.No.522/2018 and Special C.C.No.106/2018 dated 19.06.2019 passed by the LXXXI Additional City Civil Sessions Judge, (CCH- 82), Special Court exclusively to deal with elected MP’s and MLA’s in the State of Karnataka are set aside and matter is remitted to the Special Court with a direction to consider all the contentions raised by the petitioners and after application of mind with full reasoned order must be passed not erroneously by passing over the said contention.
With the above observations, the petitions are disposed off.
In view of the disposal of the main petition, IA.No.1/2019 is also disposed off.
Sd/-
JUDGE ag