IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI W.P Nos.16481-16482/2019 c/w W.P Nos.16508-16526/2019 (GM-RES) W.P Nos.16481-16482/2019:
BETWEEN:
1. Sri D Anil, s/o late S Dorairaju Aged 48 years, Additional Director Office of the Additional Director General, Directorate of Systems and Data Management, Ministry of Finance 2nd Floor, CR Buildings Queens Road, Bengaluru-560 001.
2. Sri Sujit Kumar P Sompur s/o P H Sompur Aged 39 years, Joint Director Office of the Principal Additional Director General, National Academy of Customs Indirect Taxes and Narcotics #40, HMT Factory Main Road Jalahalli, Bengaluru-560 013. … Petitioners (By Sri Aravind K V, Advocate) AND:
1. The Superintendent of Police Central Bureau of Investigation-ACB Ballari Road, Bengaluru – 560 032.
2. Sri M Kriplani s/o D Madan Kanthan Aged about 40 years Proprietor Next Gen Technologies No.863, 7th Main, 3rd Cross HAL 2nd Stage, Indiranagar Bangalore-560008 (Amended v/c/o dtd:16.4.2019) ... Respondents (By Sri P Prasanna Kumar, Advocate for R1, Sri Akash V T for Sri B K Arun, Advocate for R2) These writ petitions are filed under Articles 226 and 227 of the Constitution read with Section 482 of Cr.PC praying to quash the FIR filed by the respondent in Bangalore dated 10.4.2019 pending on the file of the 21st Additional City Civil and Sessions Judge and the Special Judge for CBI cases, Bangalore produced as Annexure-E to the writ petition.
W.P Nos.16508-16526/2019 BETWEEN:
1. Sri Lingaraju K B s/o Late K M Boregowda Aged 54 years Superintendent of Central Tax Vijayanagar Division S1 & 52, Vinaya Marga Siddhartha Nagara Mysuru – 570 011.
2. Sri Pramod Gulvady s/o G Manohar Rao Aged 58 years Superintendent of Central Tax Bengaluru North Commissionerate HMT Bhavan, Bellary Road Bengaluru-560 032.
3. Smt.Senthamarai Selvi d/o D Kumaraswami Aged 53 years Superintendent of Central Tax The Commissioner of Central Tax Appeals II Commissionerate TTMC, BMTC Building Domlur, Bengaluru-560 071.
4. Sri Sunil Kumar Singh s/o Ran Vijai Singh Aged 53 years Superintendent of Customs City Customs Commissionerate C R Building, Queen’s Road Bengaluru-560 001.
5. Sri Narayanan s/o Late K Kunjunni Aged 53 years Superintendent of Central Tax No.7, Girls School Street Seshadripuram Bengaluru-560 020.
6. Sri Basavaraj Bandiganavar s/o late Kallappa Aged 46 years Superintendent of Central Tax North West Division-7 C R Building, Devaraj Urs Layout C Block, Davanagere-577 006.
7. Sri Shenoy P G s/o Late P Narasimha Shenoy Aged 59 years Superintendent of Central Tax Deputy Commissioner of Central Excise & Central Tax (GST) 1st Floor, Vishnupriya Building LBS Marg, Ajjarkad Udupi – 576 101.
8. Sri Srinivas M V s/o Late M S V K Iyengar Aged 47 years Inspector of Customs City Customs Commissionerate C R Building, Queen’s Road Bengaluru-560 001.
9. Sri Niranjana Murthy K M s/o late K S Muddegowda Aged 48 years, Inspector of Customs City Customs Commissionerate C R Building, Queen’s Road Bengaluru-560 001.
10. Sri Gururaj G Nayak s/o Gundurao J Naik Aged 43 years Superintendent of Central Tax Mysuru Audit Commissionerate First Floor, JSS Towers Near Kamakhya Theatre Outer Ring Road, Banashankari III Stage, Bengaluru-560071.
11. Sri Y G R Chavan s/o Late Yogananda Rao Aged 47 years Superintendent of Central Tax GST West Commissionerate BMTC Building, Banashankari Bengaluru-560 070.
12. Sri V Vishweshwara Bhat s/o late M Venkatramana Bhat Aged 57 years Superintendent of Customs Chief Commissioner of Customs Bengaluru Zone, C R Building Queen’s Road, Bengaluru-560 001.
13. Sri Ramachandra B M s/o late Madaiah B Aged 51 years Superintendent of Central Tax North Division 7, 4th Floor 16/1, S P Complex, Lalbagh Road, Bengaluru-560 027.
14. Sri Devappa Naik s/o Late Rama Naik Aged 52 years SEZ Gopalana Global Axis Whitefield Bengaluru-560 066.
15. Sri S V Kasturi Ranga s/o Venkat Rao Aged 50 years Superintendent of Central Tax Bengaluru South Commissionerate C R Building, Queen’s Road Bengaluru-560 001.
16. Smt. S S Lakshmi d/o S K Subbaraju aged 48 years Superintendent of Central Tax North West Division-4 16/1, 05th Floor, S P Complex Lalbagh Road, Bengaluru-560 027.
17. Sri Narasimhappa M s/o Marappa, aged 61 years Superintendent of Central Tax Flat No.434/B-5 Block Janapriya, Green Wood Apartment Somasettihalli, Chikkabanavara Post, Bengaluru-560 090.
18. Sri Naseeruddin Ahmed s/o Late M D Aznathulla Aged 59 years Superintendent of Central Tax GST North 1 Division 29/2, Cresent Road Bengaluru-560 001.
19. Sri Abdul Azeez s/o Abdul Latif M Aged 46 years No.9, 2nd `A’ Cross Hanuman Layout Manorayanapalya Bengaluru-560 032. ..Petitioners (By Sri Aravind K V, Advocate) AND:
1. The Superintendent of Police Central Bureau of Investigation-ACB Ballari Road, Bengaluru – 560 032.
2. Sri M Kriplani s/o D Madan Kanthan Aged about 40 years Proprietor, M/s.Next Gen Technologies No.863, 7th Main, 3rd Cross HAL 2nd Stage, Indiranagar Bangalore-560008 (Amended v/c/o dtd:16.4.2019) ... Respondents (By Sri P Prasanna Kumar, Advocate for R1, Sri Akash V T, Advocate for R2) These writ petitions are filed under Articles 226 and 227 of the Constitution read with Section 482 of Cr.PC praying to quash the FIR filed by the respondent in Bangalore dated 10.4.2019 pending on the file of the 21st Additional City Civil and Sessions Judge and the Special Judge for CBI cases, Bangalore produced as Annexure-E to the writ petition.
These petitions are coming on for orders this day, the Court made the following:-
ORDER In these writ petitions, petitioners have sought for the following reliefs:
A. Issue of writ of certiorari or any other writ by quashing the FIR filed by the respondent in Bangalore CBI/ACB/BLR 2019 RC 06 (A) 2019 dated 10.4.2019 pending on the file of 21st Additional City Civil and Sessions Judge and the Special Judge for CBI cases, Bangalore produced as Annexure-E to the writ petition.
B. To pass any order as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity.
2. Petitioners are officials of the Customs Department. There are serious allegations leveled against them and others relating to demand of bribe of `.ten lakhs to release the goods imported by the complainant pertaining to supply of entry No.2485629 and 2480044 dated 4.9.2015. Such complaint has been filed by the complainant along with documents relating to video graphy evidence and it was alleged to have authenticated by Director General of Vigilance – Customs, Hyderabad pursuant to the advice from Central Vigilance Commission.
3. Learned counsel for the petitioners questioned the validity of FIR on the ground that there is non-adherence to Section 17A of the Prevention of Corruption Act,1988 (in short `PC Act’) incorporated on 26.7.2018. That before enquiry is commenced approval of competent authority was required and it has not been taken in other words before filing FIR and holding of preliminary enquiry/investigation.
4. On the other hand, learned counsel for the respondents submitted that filing of FIR dated 10.4.2019 is pursuant to the judicial pronouncement in WP No.54770/2018 disposed of on 12.3.2019. Feeling aggrieved by the order dated 12.3.2019, petitioners stated to have preferred writ appeal and consequently it was withdrawn. Thus, the 1st respondent proceeded to hold preliminary enquiry/investigation and initiated filing of FIR on 10.4.2019. It was further contended that Section 17A of the PC Act has been interpreted by the Delhi High Court in the case of Devender Kumar – vs- Central Bureau of Investigation & Ors. decided on 11.1.2019 in W.P.(CRL) 3247/2018 & Crl.M.A.
Nos.34807-08/2018 and connected matters (para-36). Thus, it was contended that having regard to the factual aspect of the present matter, non-compliance of Section 17A of the PC Act does not vitiate proceedings.
5. Heard the learned counsel appearing for both the parties.
6. Crux of the matter in the present petitions is whether before 1st respondent proceeding to hold preliminary enquiry/investigation and filing of FIR is he required to comply with Section 17A of PC Act or not?
7. Section 17A of the PC Act reads as under:
“17A.(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.”
8. In the aforesaid Section proviso is required to be examined. Undisputedly there is prima facie material relating to demand of a sum of `.ten lakhs through electronic evidence like video graphy. In view of the video graphy evidence relating to demand, Section 17A of PC Act is required to be taken into consideration that where the charge is of attempting or accepting any undue personal advantage for himself or for any other person. In such an event, Section 17A of the PC Act relating to obtaining prior approval of the competent Authority before initiating any proceeding against public servant may not require. Therefore, petitioners’ contention that there is non-compliance of Section 17A of PC Act is not tenable having regard to the fact that there is prima facie material evidence relating to demand of bribe of `.ten lakhs. Hence, question of obtaining prior approval under Section 17A of the PC Act is not warranted in view of first proviso. Section 17A of the PC Act has been interpreted by the Delhi High Court in the cited decision (supra). The relevant para-36 of the judgment reads as under:
“36. Sana has complained that despite his having paid over Rs.3 crores, he was repeatedly called for investigation by the Investigating Officer; when he complained about the same to Manoj, the latter informed him that all this was happening due to non- payment of balance amount i.e. Rs.2 crores. Taking the statement of the complainant on face value an element of coercion and threat can be gleaned. The complainant refers to communication through telephone calls, Whatsapp messages and transaction of monies through persons both outside as well as inside the country, to substantiate his allegation that monies have been extorted from him through treat, on the promise that he will ultimately be let off only when he gives the monies. The web of these conversation, electronic messages and transfer of monies seek to cover or involve the public servants in the alleged transaction. Whether the petitioners are at all complicit, as alleged, would be revealed only in further investigation. However, the alleged promise to the complainant to ultimately giving him relief in RC 2017 and/or investigating officer ceasing to all him for further investigations, cannot be said to be in the discharge of official functions or duties of the public servant (Investigating Officer) and other persons mentioned in the FIR. The bar to enquiry or inquiry or investigation under Section 17A of the PC Act is apropos such alleged offence as may be relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties. In the present case there is no recommendation or decision on record by a public servant in the discharge of his official functions. It was only the discharge of official functions that could have become the subject matter for seeking approval of the employer i.e. the Central Government. The proviso to Section 17A stipulates: “Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person”. This Proviso clearly refers to cases where the charge is of accepting or attempting to accept undue personal advantage for himself or for any other person. The purpose of Section 17A can be read to be only to provide protection to officers/public servants who discharge their official functions and/or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger. Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.”
9. Having regard to the Proviso to Section 17A of the PC Act read with decision of the Delhi High Court, petitioners have not made out a case so as to interfere with FIR dated 10.4.2019.
Accordingly, writ petitions stand dismissed.
Interim protection, that the 1st respondent shall not take any precipitative action in so far as petitioners ordered on 16.4.2019 stands vacated.
Observations as made in the present petitions may not be construed deciding any thing on merit.
In view of disposal of the writ petitions, IAs. stand disposed of.
Sd/- JUDGE Bkm