IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.4749 OF 2012 BETWEEN:
1. SRI. C.T. RAVI S/O C.E. THIMMEGOWDA MAJOR 2. SMT. PALLAVI RAVI W/O SRI. C.T. RAVI MAJOR BOTH ARE RESIDENTS OF "DEVA DATTA NILAYA" BASAVANAHALLI MAIN ROAD BASAVANAHALLI CHIKKAMAGALUR-577 101 3. SRI. SUDARSHAN S/O H.A. BYREGOWDA MAJOR 4. SMT. TEJASWINI SUDARSHAN W/O SRI. SUDARSHAN MAJOR BOTH ARE RESIDENTS OF SURYA FARM RAMANAHALLI CHIKKAMAGALUR … PETITIONERS (BY SHRI. C.V.NAGESH, SENIOR ADVOCATE FOR SHRI. K. RAGHAVENDRA, ADVOCATE) AND:
SRI. R. DEVI PRASAD S/O LATE C.R. RANGAPPA AGED ABOUT 35 YEARS RESIDENT OF 4TH CROSS SHANKARPURA EXTENSION CHIKKAMAGALUR ... RESPONDENT (BY SHRI KIRAN J, ADVOCATE FOR M/S SHETTY AND HEGDE A/S) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 14.06.2012 IN PCR NO.29/11 WHICH IS PASSED IN THE CASE PRESENTLY NUMBERED AS IN SPL.CC NO.114/12 PENDING ON THE FILE OF THE ADDL.S.J AND SPL.S.J FOR LOKAYUKTA CASE, BANGALORE URBAN DISTRICT, DIRECTING PROCESS AGAINST THE PETITIONERS, PRESUMABLY FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 409, 420, 120, 463, 466, 120B OF IPC AND UNDER SECTIONS 8, 12, 13(1)(c) and (d) OF THE PREVENTION OF CORRUPTION ACT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners have challenged the order dated 14.06.2012 in PCR.No.29/2011 passed by learned Special Judge, Bengaluru Urban District, Bengaluru, taking cognizance of offences punishable under Sections 409, 420, 120, 463, 466 & 120B of IPC and Sections 8, 12, 13(1)(c) & (d) of Prevention of Corruption Act, 1988, and also prayed for quashing of the said proceedings.
2. Heard Shri C.V. Nagesh, learned Senior Advocate for the petitioners and Shri J. Kiran, learned advocate for the respondent.
3. Briefly stated facts of the case are, respondent- complainant filed instant private complaint alleging that accused therein have committed offences punishable under Sections 13(1)(d) of the Prevention of Corruption Act, 1988. Accused No.1 is an elected Member of the Legislative Assembly. Accused No.2 is his wife. Accused No.3 is his brother-in-law and accused No.4 is wife of accused No.3. Accused No.5 to 8 are Members of Anjaneya Education Society (‘Society’ for short). Accused No.9 is the Secretary of the said Society. Accused No.10 and 11 are Executive Engineer and Commissioner of Karnataka Housing Board (‘Board’ for short) respectively. Complainant’s case is that accused No.1, by abusing his position, got 3 sites bearing No.6A, 6B and 8 in Vijayapura, Chikkamagaluru, allotted in favour of the Society. Sites No.113 and 114 were purchased by accused No.2. Payment in respect of the said site was required to be paid by four installments.
4. On presentation of the complaint, learned Special Judge by his order dated 17.12.2011, referred the case for investigation to Superintendent of Police, Lokayukta, under Section 156(3) of Cr.P.C. Lokayukta police, after investigation submitted ‘B’ Report dated 03.04.2012. Learned Special Judge by his order dated 13.04.2012, rejected the final report submitted by the Investigating Officer and ordered further investigation in the matter with a direction to submit the report within 21 days. Lokayukta police conducted further investigation and submitted the second report on 29.05.2012. On submission of second report, learned Special judge held that there were sufficient grounds to issue process to accused Nos.1 to 4 and not against accused Nos.5 to 8, 10 and 11. Learned Special Judge, by impugned order rejected the second ‘B’ Report against accused Nos.1 to 4, took cognizance of aforementioned offences and issued process. Hence, this petition.
5. Shri C.V.Nagesh, learned Senior Advocate submitted that complaint before the learned Special Judge, who is designated to try offences under Prevention of Corruption Act was filed on the factual premise that accused No.1 had abused his position as a public servant and got in all three sites allotted in favour of the Society and two sites in favour of his wife. He argued that even if it is assumed that accused No.1 had influenced the officials of the Board, learned Special Judge has found no grounds to take cognizance against three members of the Society as also two officials of the Board, who were arrayed as accused Nos.10 and 11.
He contended that once the officials of the Board, who have, admittedly, allotted the sites in question have been absolved of allegations of corruption, the complaint against accused No.1 should automatically fall. If accused No.1 is excluded, the learned special Judge would not get jurisdiction to try other accused.
6. He next contended that where reference is made under Section 156(3) of Cr.P.C., and police after investigation filed a report under Section 173 of Cr.P.C., learned Magistrate or a Special Judge as in this case have three options; firstly, to accept the report. Secondly, to reject the report and direct recording of sworn statement. Thirdly, to keep the report pending and proceed further under Section 202 of Cr.P.C., directing Investigating Officer to investigate further. He argued that in the instant case, learned Special Judge, at the outset, has rejected the report. Once he has rejected the report, the only option available to him was to take cognizance on the original complaint and record the sworn statements. Learned Special Judge, having rejected the report could not have directly issued the process against the accused.
7. He next contended that so far as Section 409 is concerned, it deals with a property entrusted to a public servant or any banker. He pointed out that in the instant case, learned Special Judge having come to a conclusion that no case was made against the officials of the Board, the question of entrusting public property to accused No.1 or for that matter, any other accused would not arise. With regard to Section 463 of IPC, he argued that it is a definition clause of forgery and penal clause is Section 466 of IPC, which is in respect of a ‘record of a Court’ or ‘a public register’. He contended that reading of a complaint does not disclose forgery of a record of a Court or of a public register by the petitioners. So far as offences punishable under Sections 13(1)(c) and (d) of Prevention of Corruption Act, 1988, are concerned, he argued that Section 13(1)(c) requires the ingredients of dishonestly and fraudulently misappropriating a property entrusted to an accused, who is a public servant. So far as 13(1)(d) is concerned, the ingredient required is obtaining for himself or for any other person any valuable thing or pecuniary advantage.
8. In substance, the principal argument advanced by Shri C.V.Nagesh is that if alleged offences were committed, they must have been committed by the officials of the Board, who have allotted the sites. Learned Special Judge has arrived at a conclusion that there are no sufficient grounds to take cognizance against the said two officials. Resultantly, the entire complaint and any proceedings in furtherance thereof amounts to abuse of process of law.
9. Learned advocate for the respondent submitted that complainant’s case is that accused No.1 being a Member of Legislative Assembly has misused his powers and got three sites meant for weaker section allotted in favour of the Society and two sites in favour of his wife. In so far as legal contentions urged by Shri C.V.Nagesh is concerned, he made a feeble attempt to support the order passed by the learned Special Judge by arguing that the material on record before the learned Special Judge was sufficient to take cognizance.
10. I have carefully considered the rival submissions and perused the records.
11. In the conspectus of facts of the case, the point that arise for consideration is whether the learned Special Judge could take cognizance of offences having first rejected the final report submitted by the Investigating Officer under Section 173 of Cr.P.C. Decision of Hon’ble Supreme Court of India in Vasanti Dubey vs. State of Madhya Pradesh1 relied upon by Shri C.V.Nagesh, learned Senior Advocate, with regard to the manner in which learned Magistrate is required to deal with a final report under Section 173 of Cr.P.C., is summarized as follows:
“20. This position has been further reiterated and reinforced in a recent judgment of this Court delivered in Ram Naresh Prasad v. State of Jharkhand4, wherein it has been held that when the police submitted a final report of the investigation of the case which in colloquial term is 1 (2012) 2 SCC 731 called “closure report”, the Magistrate cannot direct the police to submit the charge-sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down under Section 190 read with Section 156 CrPC itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in H.S. Bains v. State (UT of Chandigarh)5 wherein Their Lordships have summarised the position as follows:
“1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante;
2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps:
(i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the compliant.
(ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200.
(iii) Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the Magistrate cannot direct the police to straightaway submit the charge-sheet as was the view expressed in Abhinandan Jha3which was relied upon in Ram Naresh Prasad4.” (emphasis supplied) 12. The order passed by the learned Special Judge reads as follows:
“45. The matter was referred once on 17.12.2011 and again on 13.04.2012 and the Investigating Agency submitted ‘B’ report on both occasions. The Court is of the sincere view that there is necessity for referring the matter for the 3rd time as the materials available on record, documents collected during the investigation, there are sufficient grounds to take cognizance against the accused No.1 as well. However, not against the accused Nos 5 to 8, 10 and 11 (9 reported to be dead). In the circumstances of the case, materials placed before the court and for the reasons morefully stated above, I am of the sincere finding that there are just and sufficient grounds to issue process to accused No.1 to 4 to participate in the proceedings for the offence punishable under sections 409, 420, 120, 463, 466 & 120-B of IPC and under section 8, 12, 13(1)(c) & (d) of Prevention of Corruption Act. Hence I answer above point accordingly and proceed to pass the following ORDER Report filed by the investigating agency is hereby rejected.
Cognizance is taken by the Court against the accused Nos 1 to 4 for the offence punishable under sections 409, 420, 120, 463, 466 & 120-B of IPC and under section 8, 12, 13(1)(c) & (d) of Prevention of Corruption Act.
Issue summons to accused Nos 1 to 4 returnable by 2.7.2012.” (emphasis supplied) 13. A careful reading of the above clearly indicates that the learned Special Judge has not found sufficient grounds to take cognizance of offences against two officials of the Board namely, Executive Engineer and Commissioner of the Board, who have allotted the sites in question. He has also recorded that no sufficient grounds are made out to take cognizance so far as three other members of the Society are concerned. Admittedly, accused Nos.2, 3 and 4 are private persons.
14. Shri C.V.Nagesh is right in his submission that once the learned Special Judge has come to the conclusion that there were no grounds to take cognizance under the Prevention of Corruption Act against the officials, who have allotted the sites, the case against accused No.1 would be wholly unsustainable.
15. Further, as held by the Hon’ble Supreme Court of India, in Vasanti Dubey (supra), the procedure adopted by the learned Special Judge in taking cognizance without recording the sworn statement is unsustainable in law. Thus, there is clear procedural and material irregularity in the order of taking cognizance of offences. Hence, the said order is not sustainable and liable to be set-aside. So far as continuance of proceedings are concerned, proceedings against the officials, who have allotted the sites have been dropped. In the light of the averments contained in the complaint, offences punishable under Prevention of Corruption Act, if any committed must be by the officials, who have allotted the sites. As noticed hereinabove, the proceedings against them have come to an end. The principle allegation is abuse of position, which entails punishment under Prevention of Corruption Act. Once, the learned Special Judge has held that there was no material against the officials of the Board, nothing more survives for consideration and continuation of further proceedings will amount to abuse of process of law. The impugned order has been passed on 14.06.2012. The complainant has accepted the said order and it is stated at Bar by the learned advocate for the respondent that order dropping proceedings against the officials of the Board has not been challenged.
16. In the circumstances, this petition merits consideration and it is accordingly allowed. Order dated 14.06.2012 in PCR No.29/2011 passed by the Special Judge under the Prevention of Corruption Act, Bengaluru Urban District, Bengaluru, and all further proceedings pursuant thereon are quashed.
No costs.
Sd/- JUDGE AV