IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8499 OF 2015 BETWEEN:
SRI. K.B. CHANDRASHEKAR S/O. K.J. BORALINGE GOWDA AGED ABOUT 64 YEARS RESIDING AT NO.1389, BYRAVANILAYA, KOKKALIGA HOSTEL ROAD, SUBHASH NAGAR K.R. PET TOWN – 571 426 MANDYA DISTRICT … PETITIONER (BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE A/w. SRI.S.S. SRINIVASA RAO, ADVOCATE) AND:
1 STATE OF KARNATAKA BY K.R. PET TOWN POLICE STATION K.R. PET – 571 426 MANDYA DISTRICT 2 SRI. CHANDRASHEKAR H., S/O. LATE SHIVAPPA IN-CHARGE CHIEF OFFICER TOWN MUNICIPALITY K.R. PET TOWN – 571 426 MANDYA DISTRICT ... RESPONDENTS (BY SRI. I.S PRAMOD CHANDRA, SPP-II FOR R1;
SRI. H. PAVANACHANDRA SHETTY, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR IN CR. NO.106/2014 ON THE FILE OF THE CIVIL JUDGE [JR. DN.,] AND JMFC, K.R. PET, MANDYA DIST., WITH THE FIRST RESPONDENT POLICE AGAINST THE PETITIONER ABOVE FOR THE OFFENCE P/U/S. 149, 408, 409 AND 420 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned senior counsel appearing for the petitioner, learned SPP-II for respondent No.1 and the learned counsel for respondent No.2/Informant.
2. Petitioner has sought to quash the FIR in Crime No.106/2014 registered for the offences punishable under sections 149, 408, 409 and 420 of IPC.
3. Learned counsel for the petitioner submits that the averments made in FIR indicate that the same is registered based on the report submitted by the Karnataka Lokayukta. The letter written by the then Karnataka Lokayukta to the Government dated 28.06.2010 clearly reveals that the nature of the offences and the persons who were responsible for committing the alleged irregularities in the allotment of sites were not specified. In the said letter, it was noted that “details of the report indicate the mode of distribution of sites [allotment and auction, at will] by the Town Municipality, Town Panchayath and the Mandal Panchayath, during different periods. The local body has not maintained files and records on each site allotted to the beneficiary. And, most of the records [Registers] available are in bad shape [torn] and are difficult to read with too many corrections, overwriting and manipulations.”
4. In the said letter, it is further stated “The Presidents of the Town Municipality and Pattan Panchayath and the Pradhan of the Mandal Panchayath and the Chief Officers [of Municipality] and the Secretary [of Mandal Panchayath] are guilty of negligence, when they are a party to the decisions taken by the Council/Mandal to allot sites contrary of provisions of law. And, it is necessary to initiate action against the Presidents, Pradhans and the Chief Officers and the Secretaries, who are a party to the allotment of sites in these two layouts, which are not in accordance with the law and the guidelines. The names of the public servants involved in these allotments are provided in the Annexures enclosed with the Report.”
5. The submission of the learned counsel is that a reading of the above letter indicates that the Karnataka Lokayukta has not specified the irregularities in allotment and persons involved in the said irregularities. Under the said circumstances, general direction to register the FIR against the accused is illegal and opposed to all cannons of law. Without there being any preliminary enquiry with regard to the involvement of the petitioner herein in the commission of the alleged offences, FIR could not have been registered against the petitioner. The action of the respondents amounts to infringement of the right of the petitioner. Placing reliance on the observations made by the Hon’ble Supreme Court in the case of ‘COMMON CAUSE, A REGISTERED SOCIETY vs. UNION OF INDIA AND OTHERS’ reported in 1999 [6] SCC 667, the learned counsel has emphasized that mere direction to register the case is wholly erroneous and cannot be sustained. Such a direction would be contrary to the concept and philosophy of ‘life’ and ‘liberty’ guaranteed to a person under Article 21 of the Constitution. Further, referring to paragraphs 170 to 174 of the aforesaid decision, learned counsel has emphasized even the allegations made in the complaint and the contents of the report do not make out any offences alleged against the petitioner. Being Pradhan of the Panchayat at the relevant point of time, the petitioner, at the most, had power to allot sites. As the Hon’ble Supreme Court has held in paragraph-171 of the above decision, “mere exercise of ‘power to allot’ cannot be treated as ‘property’ within the meaning of section 405 which is capable of being misutilized or misappropriated.” Hence, on merits as well as procedure, the registration of the FIR being illegal and violation of right to liberty of the petitioner, learned counsel has sought for quashing of the entire proceedings.
6. Defending the action taken against the petitioner, learned SPP-II has drawn my attention to the relevant portion of the investigation report of the Lokayukta at internal pages 24 to 27 wherein the details of the alleged illegalities and irregularities are specified. It is stated therein that without collecting financial background and annual income of the allottees and without there being clear records as to when applications were called for, for allotment of sites to those beneficiaries, sites were allotted. In the said report, it was specifically stated that on consideration of various allotments made by the petitioner during his tenure, prima facie, it was ascertained that large number of allotments were made subsequent to the resolutions of the Panchayath. Hence, the learned SPP-II would submit that there was sufficient material for registration of case against the petitioner. That apart, the alleged illegalities having been committed over the years by large number of officers and officials working in Mandal Panchayath, the details of the offences is not expected to be mentioned in the FIR. All these aspects are matter for investigation since the said FIR was registered based on the preliminary investigation conducted by Lokayukta, there is no illegality whatsoever either in registration of the FIR or in the investigation taken up by the respondent No.1. Further, by referring to internal page 32 of the report, learned SPP-II has pointed out that in respect of three allotments made by the petitioner herein, it was ascertained during the enquiry that the said allotment letters did not even contain the tender of allotment and such other particulars which therefore clearly make out the offences alleged against the petitioner. Thus, he seeks for dismissal of the petition.
7. Learned counsel appearing for Respondent No.2 submitted that pursuant to the directions of the Deputy Commissioner of Mandya District and based on the preliminary investigation conducted by the Lokayukta, FIR has been registered. Along with the said FIR, investigation report as well as list of beneficiaries were also submitted before the Investigating Officer. Hence, the argument of the learned counsel for the petitioner that FIR did not contain any allegations constituting offences alleged against the petitioner cannot be accepted and hence he seeks to dismiss the petition.
8. On considering the rival submissions and upon going through the material on record, it is seen that prior to the registration of the FIR, investigation was conducted into the alleged misappropriation in allotment of sites in two layouts of Hemavathi and T.B. Extension in K.R. Pet Town. The Government had entrusted the investigation to the Lokayukta, and the detailed investigations were entrusted to Sri. K.L. Anandegowda, the Vigilance Director [Urban Development] of the Karnataka Lokayukta who was the former Director of Town Planning. The letter dated 28.06.2010 addressed by the then Lokayukta, State of Karnataka, indicates that the investigation report covered different aspects of the area of development with particular reference to the development of Hemavathi and T.B. Extensions. Though in the said letter, it is stated that the details of the report indicated the mode of distribution of sites by the Town Municipality, Town Panchayath and Mandal Panchayath during different periods and most of the records were in bad shape, a reading of the said letter clearly indicates that the Presidents of the Town Municipality, Pattan Panchayath and Pradhan of the Mandal Panchayath, Chief Officers and Secretary of Mandal Pancahyath were found guilty of negligence. It was specifically observed that they were parties to the decision taken by the Council/ Mandal contrary to the provisions of law and that they were also liable for criminal prosecution for the alleged offences. Along with the FIR, investigation report was also enclosed. As already referred above, in the said investigation report, irregularities committed by the respective officers during their tenure has been narrated and insofar as present petitioner is concerned, at internal pages 24, 28 and 32, the nature of illegalities committed by the petitioner herein are detailed. These findings, in my view, prima facie, attract the offences alleged against the petitioner. The said report being part of FIR, contention of learned counsel for the petitioner that solely on the basis of the letter of the Karnataka Lokayukta and directions of the Deputy Commissioner, alleged FIR has been registered without pinpointing the role played by the respective accused cannot be accepted. Having regard to enormity of charges leveled against large number of officers and officials of the Town Panchayath during the relevant period, the informant cannot be expected to give every detail of the commission of the offences. It is only during the course of investigation, all the ramifications of the offences could be unearthed.
9. 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.
10. As the allegations made against the petitioner, prima facie, attract the ingredients of the offences, alleged in the FIR, there is no justifiable reason to quash the FIR and consequent investigation thereon.
Accordingly, petition is dismissed.
AN/-
Sd/- JUDGE