IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION No.129 of 2019 BETWEEN:
T.K. LAKSHMINARAYANA REDDY, S/O. LATE KRISHNAPPA, AGED ABOUT 56 YEARS, RESIDING AT 4TH CROSS, ASHOKA NAGAR, TUMAKURU - 572 101.
... PETITIONER (BY SRI HARSHITH B., FOR SRI C.V. SUDHINDRA, ADVOCATE) AND:
STATE OF KARNATAKA, REPRESENTED BY LOKAYUKTA POLICE, TUMAKURU, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560 001.
... RESPONDENT (BY SRI VENKATESH S. ARABATTI, SPL.P.P.) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 22.12.2018 IN CRL.MISC.No.1206/2018 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT TUMAKURU AND ALLOW THE APPLICATION AS PRAYED.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 07.03.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
O R D E R This Revision Petition is filed by the petitioner under Section 397 read with 401 of Cr.P.C. being aggrieved by the order dated 22.12.2018 passed by the II Additional District and Sessions Judge at Tumakuru in Crl.Misc.No.1206/2018, dismissing the application filed by the petitioner under Section 451 read with Section 457 of Cr.P.C.
2. The brief facts of the case of the petitioner before the Court below is that the respondent-Police registered the case in Cr.No.14/2012 against the petitioner for the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and during the raid, the Investigating Officer seized LIC Policy Bonds and freezed the Savings Bank Account of the petitioner. Subsequently, the petitioner moved an application in the Crl.Misc.No.1076/2016 under Section 451 and 457 of Cr.P.C, wherein, the trial Court defreezed the Savings Bank Account and permitted the petitioner to operate the same, however, directed to deposit the proceeds of LIC policy in Fixed Deposits in the said case. Subsequently, the petitioner again moved another application before the trial Court in Crl.Misc.No.1206/2018 on the ground that the marriage of his second daughter is scheduled to be held on 14th and 15th of February 2019 and required the fixed deposit amount to meet the financial expenses, which came to be dismissed by the Court below. It is this order which is under challenge.
3. The learned counsel for the petitioner contended that the trial Court dismissed the application solely on the ground that the said Court has already considered the very same prayer of the petitioner in the earlier occasion and rejected the same. Hence, the successive application cannot be considered as the said Court becomes functus officio. Therefore, learned counsel for the petitioner contended that the trial Court has not considered the application on merits. The said FD amount has already been calculated by the Investigating Officer in respect of the wealth of the petitioner. Learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2003 SCC (Crl.) 1943) and submitted that the petitioner is very much in need of money for the purpose of meeting the marriage expenses of his second daughter. Earlier, after dismissal of the application, he has not preferred any revision against the said order, as the trial Court has partly allowed the application and permitted the petitioner to operate the Savings Bank Account by defreezing the same. He is ready to execute the indemnified bond for the amount and hence, prayed for allowing the petition.
4. Per contra, the learned Special Public Prosecutor for the respondent contended that if the fixed deposit amount is released, it is not possible to confiscate the same, if the accused is convicted for the charges by the trial Court. Hence, prayed for dismissal of the petition.
5. Heard learned counsel for the appellant and learned Special Public Prosecutor for the respondent-Lokayuktha.
6. Upon hearing the arguments of both the counsels, it is well settled by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) that while considering the application under Sections 451 and 457 of Cr.P.C. for releasing of the property, some guidelines were issued and directed to dispose off the application within the specified period. This Court in the case of The State, by Deputy Superintendent of Police Vs. Sree Rama Reddy in Crl.R.P.No.1123/2001 decided on 10.11.2003, has considered the power of this Court under Section 451 of Cr.P.C. In another case a similar benchof this Court between Gonugunta Brahmaiah and State by CBI Police, Bengaluru in Crl.R.P.No.2281/2013 c/w Crl.RP.No.2280/2013 decided on 13.12.2013 has released the amount in favour of petitioner by considering the judgments of various Courts including Sunderbhai’s case (supra).
7. Now, coming to the case on hand, the trial Court has dismissed the application only on the ground that it has become functus officio as the said Court has already decided the very same matter on a previous occasion. Even otherwise the respondent-Police have already investigated the matter and filed charge sheet, which is pending before the trial Court in Spl.C.No.275/2015. The trial Court already defreezed the Savings Bank Account in its order passed in Crl.Misc.No.1076/2016 dated 21.09.2016, which was not challenged by the respondent by filing Revision before this Court. Apart from that the respondent has not taken any action to attach the property of the accused-petitioner under the provisions of criminal law Amended Ordinance 1946, and no material is placed before this Court. Once, the Investigating Officer has calculated the fixed deposit amount, which was seized by him in respect of calculating the disproportionate assets more than the known source of income of the petitioner, which is also documentary evidence. Therefore, once the amount is already calculated by the Investigating Officer based on the documents, if the amount is released, that will not change the figure of disproportionate percentage arrived at by the prosecution, while proving the case. The only apprehension of the prosecution is that, if the fixed deposit amount is released, it is not possible to recover the same from the petitioner-accused if conviction is held against him by the trial Court. To safeguard the interest of the respondent, it would suffice to impose certain conditions to the petitioner to execute indemnity bond with a surety for the like sum, which will meet the ends of justice. Therefore, without much discussion on this point, the petitioner is entitled for release of the fixed deposit amount in the bank for the purpose of meeting the expenditure of his daughter’s marriage. Hence, I pass the following order:
i) The Criminal Revision Petition is allowed.
ii) The order dated 22.12.2018 passed by the trial Court in Crl.Misc.No.1206/2018 is set aside.
iii) The application filed by the petitioner is allowed.
iv) It is ordered to release the fixed deposit amount to the petitioner for interim custody and subject to final result of the case before the trial Court with a condition that the petitioner shall execute the indemnity bond for the said amount with two sureties for the like sum to the satisfaction of the trial Court.
Sd/- JUDGE GBB