IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION No.1402 OF 2016 BETWEEN:
STATE OF KARNATAKA BY LOKAYUKTHA POLICE REPRESENT BY PSI LOKAYUKTHA POLICE MADIKERI-571201 KODAGU DISTRICT.
...PETITIONER (BY SRI PRASAD B S, SPECIAL PUBLIC PROSECUTOR) AND:
SRI. LAKSHMANA S/O NARASIMHA SHETTY AGED ABOUT 41 YEARS OCC:LICENCED SURVEYOR SURVEY OFFICE, SOMWARPET PERMANENT R/O: HALEBEEDU VILLAGE BILIKERE HOBLI HUNSUR TALUK MYSORE DISTRICT-571105.
(BY SRI M M ASHOKA, ADVOCATE) …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 09.06.2016/10.06.2016 PASSED BY PRL.
SESSIONS AND SPL. JUDGE, KODAGU, MADIKERI IN SPLECIAL CASE (CORRUPTION).NO.2/2012.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER Heard the learned Special Public Prosecutor for Lokayuktha and the learned counsel for the respondent/accused.
2. This Criminal Revision Petition is filed challenging the order rendered by the Court below in Special Case (Corruption) No.2/2012 dated 09.06.2016, whereby the application filed by the accused under Section 227 of Cr.P.C. was allowed discharging the accused for the offences punishable under Section 7 and 13(1)(d) r/w Sec 13(2) of Prevention of Corruption Act, 1988 levelled against the accused.
3. The factual matrix of this petition are as under: It is stated in the complaint that on 16.12.2010 one H.S.Harishchandra, an agriculturist filed a complaint before the Police Inspector of Lokayuktha Police Station, Madikeri, stating that he possessed landed property in Adigalale Village, Somwarpet Taluk, Madikeri District in Survey No.2 measuring 1.5 acre and in Sy.No. 5 measuring 0.85 acres and in Survey No.17 measuring 2.58 acre. When the complainant approached the accused who was working as a licenced surveyor in the limit of Somwarpet Survey Office to survey the said landed property, he had demanded bribe in a sum of Rs.3,500/- for each survey number for meating in total Rs.10,500/-. But the complainant was not inclined to tender the bribe amount to the accused. Hence, he had approached the Police Inspector of Lokayuktha, Madikeri. On the basis of the complaint, a case in Crime No.6/2010 came to be registered against the accused for the afore said offences. Thereafter the police inspector secured the panch witnesses and in their presence conducted entrust mahazar wherein the complainant produced the bribe amount smeared in phenolphthalein in a sum of Rs.5,000/- to the accused. Subsequently, police inspector seized the said bribe amount in the survey office in the presence of pancha witnesses. Subsequently, the police inspector of Lokayuktha police investigated the case thoroughly by recording the statement of witnesses and filed a charge sheet against the accused. It consists the statement of witness, so also the trap panchanama said to be conducted by the investigating officer in the presence of panch witnesses. Subsequent to laying of charge against the accused, the accused is required to face trial for the offences. But the accused filed an application under Section 227 of Cr.P.C. seeking discharge from the alleged offences levelled against him in the charge sheet laid by the investigating officer. The court below considering the application filed by the accused under Section 227 Cr.P.C., discharged the accused from the offences under Sections 7 and 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988. It is against the said order of discharge that the present revision petition is filed by the Karnataka Lokayuktha-Police Station seeking to set aside the said order of discharge.
4. Learned Special Prosecutor for the Lokayuktha - petitioner has taken me through the averments made in the complaint and so also the fulcrum of Entrust Mahazar and Trap Mahazar conducted by the Police Inspector of Lokayuktha in the presence of panch witnesses. He contends that the mahazar is required to be tested in the court of law by securing the panch witnesses and also conducting trial by the prosecution to prove the guilt of the accused. The consideration of the application filed by the accused under Section 227 Cr.P.C. is not a mini trial to go through the entire material available on record. But however, it is the power vested in the Trial Court to see whether there are enough material to put the accused on trial for the offences under the PC Act. But the court below, in Spl.Case (Cor) No.2/2012 has discharged the accused from the alleged offences even though the accused, a Government servant being a licenced Surveyor has received the bribe amount from the complainant to discharge his duty. Further, after the charge-sheet was laid against the accused, the court below was not justified in discharging him from the offences.
The learned Special Prosecutor further submits that the contention relating to the accused who was a licenced surveyor having been removed from service, the concept of Section 19 of the PC Act regarding sanction from the competent authority is necessary or not to prosecute the case of the accused, at this stage, it does not arise since it is only a defence theory which could be taken by the accused while facing trial. Thus, the learned Special Prosecutor prays for allowing the petition and setting aside the order passed by the court below discharging the accused.
5. Per contra, learned counsel for the respondent – accused contends that the material on record are not enough material to proceed against the accused under Sections 7, 13(1)(d) and 13(2) of the PC Act. Further, the materials secured by the Investigating Officer during the course of investigation though sufficient material to lay the charge- sheet, but there is no strong material to proceed with the case against the accused. The scope and object of Section 19 of the PC Act has been rightly considered by the court below and hence the learned counsel contends that the order passed by the court below discharging the accused of the alleged offences, does not call for interference and seeks to dismiss the petition as being devoid of merits.
6. On a careful consideration of the contentions advanced by the learned counsel for the accused and Special Public Prosecutor for Lokayuktha and having regard to the material on record, it is gathered that on the complaint filed by an agriculturist one H.S. Harishchandra said to be complainant stating that the accused – respondent who was working as a Licenced Surveyor in Somwarpet Survey Office had demanded Rs.3,500/- bribe to carry out survey work in respect of each survey number, on 20.12.2010 the petitioner/Lokayuktha, trapped the respondent while receiving bribe. After investigation, charge-sheet was filed by the Investigating Officer consisting of statement of witnesses and mahazar and the witness was subjected to examination and cross-examination in accordance with law. However the accused filed an application under Section 227 Cr.P.C. seeking discharge from the alleged offences, but taking into consideration the fact relating to an offence that prior sanction was not obtained from the competent authority to prosecute the accused who was a public servant, the court below has proceeded to discharge the accused for the alleged offences, which is not proper viewed from any angle.
7. The application under Section 227 Cr.P.C. does not require a mini-trial but it only requires to look into whether there are any prima facie material against the accused for him to face trial. In the case on hand, I find that the court below has erred in discharging the accused even after the trap that was conducted was successful and the accused was found guilty of the alleged offences in the charge sheet. The Apex Court in the case of Anoop Singh vs. State (Govt. Of Nct Of Delhi), in Crl. Rev. No. 262/2016 decided on 12.05.2017, the relevant portion of which reads as under:
“...(i) The jurisdiction of the Trial Court whilst exercising power under Section 227 of the CrPC is limited.
(ii) At the stage of charge, the Trial Court has to merely peruse the evidence in order to find out whether there is a sufficient ground for proceeding against the accused or not.
iii) If upon consideration of the material placed before it, the Trial Court is satisfied that a prima facie case is made out against the accused, it must proceed to frame charge in terms of Section 228 of the CrPC.
(iv) The Trial Court cannot conduct a roving and fishing inquiry into the evidence or a meticulous consideration thereof at this stage. Marshalling and appreciation of evidence, and going into the probative value of the material on record, is not in the domain of the Court at the time of framing of charges.
(v) In other words, at the beginning and the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged, and nor is any weight to be attached to the probable defence of the accused. Thus, a “mini trial” is not to be conducted.
(vi) It is not obligatory for the Trial Court at the time of framing of charges, to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the CrPC.
(vii) Thus, it is axiomatic that at the initial stage if there is a strong/grave suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.
(viii) The Trial Court may sift the evidence to determine whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence or not.
(ix) Detailed orders are not necessary whilst framing charges and contentious issues are not required to be answered by the Trial Court at the stage of framing of charges.
(x) Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused.
(xi) Further, if the scales of pan as to the guilt or innocence of the accused are something like even at the initial stage of making an order under Section 227 or Section 228, then, in such a situation, ordinarily and generally, the order which will have to be made will be one under Section 228 and not under Section 227 of the CrPC.
(xii) The provisions of Section 397 of the CrPC empower the High Court with supervisory jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court.
(xiii) Revisional jurisdiction is severely restricted, and ought not to be exercised in a routine and casual manner. It has to be exercised, normally, without dwelling at length upon the facts and appraising the evidence of the case.
(xiv) Further, the Court in revision ought to refrain from substituting its own conclusion on an elaborate consideration of evidence.
(xv) Whilst in revisional jurisdiction, the High Court cannot enter into the realm of appreciation of evidence at the stage of the framing of the charges itself.
(xvi) The High Court, under statutory obligation, ought to be loath in interfering at the stage of framing the charges against the accused, merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused person. Thus, self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face.
(xvii) Revisional powers could be exercised only when it is shown that, (a) there is a legal bar against the continuance of the criminal proceedings; (b) the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged;
(c) Where the exercise of revisional power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts.
(xviii) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.”
(emphasis supplied) 8. In furtherance of this position, it is also to be noted that in view of the fact that the trap was successful and the offence having been found, in the charge sheet, the accused requires to face trial. Section 19 of the PC Act relating to obtaining prior sanction would not at all arise in the instant case as contended by the counsel in view of the fact that the accused was already dismissed from service at the time when the charge-sheet was filed and he was no longer a Government servant. Once charge has been framed, the court below cannot review its own order, since the same is not permissible in law. In view of the above, I proceed to pass the following:
ORDER The petition is allowed. Consequently, the order passed by the court below in Spl Case (Corrpn.) 2/2012 dated 10.06.2016 discharging the accused of the offences under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act, is hereby set aside, consequently the accused shall face the trial, in accordance with law.
Since it is a case of the year 2012, the court below is directed to expedite the matter, in accordance with law.
Sd/- JUDGE KLY/ KS