Karnataka High Court
The State By Dy.Sp vs Dr . B. Devanand on 28 January, 2025
1 Crl.R.P.No.100014/2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100014 OF 2021
BETWEEN:
THE STATE BY DY.SP.
KARNATAKA LOKAYUKTA
THROUGH SPECIAL
PUBLIC PROSECUTOR,
DHARWAD,
HIGH COURT OF KARNATAKA
...PETITIONER
Digitally signed by (BY SRI. I.G.GACHCHINAMATH, ADVOCATE)
MALLIKARJUN
RUDRAYYA KALMATH
Location: HIGH AND:
COURT OF
KARNATAKA
DR. B.DEVANAND
S/O LATE B.P.OBAIAH
AGED:54 YEARS
OCC:PROFESSOR, HOD DEPARTMENT
ANESTHESIA, VIMS (VIJAYANAGAR
INSTITUTE OF MEDICAL SCIENCE)
BALLARI,
R/O PLOT NO.2 & 3,
ANAND NILAYA, WARD NO.35,
VEERANAGOUDA COLONY
OPP JSW PARK,
BALLARI - 583 103.
...RESPONDENT
(BY SRI.SHANKAR P. HEGDE & SRI. MOHANKUMAR M., ADVS)
2 Crl.R.P.No.100014/2021
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO CALL FOR RECORDS IN RESPECT OF THE SPL.
C.NO.214/2017 ON THE FILE OF THE SPECIAL JUDGE
(LOKAYUKTA) AND PRINCIPAL SESSIONS JUDGE, BALLARI AND
SET ASIDE THE IMPUGNED ORDER DATED 31.01.2020 MADE IN
SPL.C.NO.214/2017 PASSED BY THE SPECIAL JUDGE
(LOKAYUKTA) AND PRINCIPAL SESSIONS JUDGE, BALLARI FOR
OFFENCE PUNISHABLE UNDER SECTION 13(I) (D) READ WITH
13(2) PC ACT 1988 BACK FOR TRIAL.
THIS CRIMINAL REVISION PETITION, HAVING BEEN HEARD
AND RESERVED ON 30.10.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
This petition filed under Section 397 read with Section
401 of the Code of Criminal Procedure, is by the State
represented by Lokayukta Police, challenging the impugned
order dated 31.01.2020 in Spl. Case No.214/2017 on the file
of Special Judge (Lokayukta) and Prl. Sessions Judge, Ballari,
3 Crl.R.P.No.100014/2021
discharging the respondent - accused for the offences
punishable under Sections 13(1)(d) read with Section 13(2)
of Prevention of Corruption Act, 1988, by allowing the
application filed by him under Section 239 of Code of
Criminal Procedure (hereinafter referred to as 'the Cr.P.C.'
for short).
2. For the sake of convenience, the parties are
referred to by their ranks before the Trial Court.
3. At the relevant point of time accused was working
as head of the department and professor in Vijayanagara
Institute of Medical Sciences (VIMS), Ballari. Based on the
source report, a case came to be registered against the
accused in Crime No.02/2014 for the offences punishable
under Sections 13(1)(e) read with Section 13(2) of P.C. Act.
The source report states that, accused is a resident of Ballari.
His father B.P. Obayya retired Head Constable. His mother
Padmavatamma was a home maker. The parents of accused
had three sons and four daughters. Accused is the eldest.
4 Crl.R.P.No.100014/2021
He is married. All his brothers and sisters are separated and
living separately. The mother of accused is living with her
sons B.Janakiram and B.Jagannatha. Accused is married to
Smt.Saraswati and they are having a son and daughter.
Daughter is studying in B.E and son has completed PUC, but
not employed. Accused and his wife have not inherited any
property from their ancestors.
3.1. Accused is residing in a house constructed on Plot
Nos.2 and 3, Ward 35, Veeranagouda Colony. Accused has
worked as Asst. Professor at VIMS and promoted as
Professor. He has worked from 13.11.2008 to 12.07.2012 at
VIMS, 13.07.2012 to 16.07.2013 at Mandya as Director. At
present he is working as Professor, HOD, Anesthesia, VIMS
Ballari.
3.2. On the credible information, discreet enquiry was
conducted and source report was submitted which prima
facie reveal that accused is leading a lavish life and
accumulated wealth disproportionate to his known source of
income. On the basis of the source report, case was
5 Crl.R.P.No.100014/2021
registered and investigation is taken up. Charge-sheet
prima-facie reveal that, the assets acquired by the accused
are 49.41% disproportionate to his known source of income.
There is prima facie material to frame charge against the
accused. Despite the same, the Trial Court has discharged
him by allowing the application filed by him under Section
239 of Cr.P.C.
3.3 The impugned order is challenged on the
following:
GROUNDS
i. The impugned order is contrary to law, facts and
evidence on record. The Trial Court has not assigned
any justifiable grounds and valid reasons for allowing
the application filed by the accused and as such is liable
to be set aside. Undisputedly, accused is a public
servant and prima-facie the properties found in his
possession are disproportionate to his known source of
income. He has not satisfactorily accounted for the
disproportionate assets at his hands.
6 Crl.R.P.No.100014/2021
ii. In the APR for the year 1996-97 the accused has shown
₹12,00,000/-. However, he has not produced any
material such as Bank account etc., to show that at the
time of joining service he was having ₹12,00,000/-
cash. The Trial Court without any evidence has come to
an erroneous conclusion that accused has accounted for
the same. The known source of income of accused is to
be established only at the trial.
iii. The accused has also claimed that he has borrowed
₹12,00,000/- from Dr.G.Chandrashekar, ₹15,00,000/-
from Dr.Mohammad Shafi Uddin, and his wife has
borrowed ₹13,00,000/- from Dr.Rehana Fatima and
₹9,00,000/- from Dr.G.Chandrashekar. At the stage of
considering the discharge application there is no
evidence of these persons and no documents to show
whether they had capacity to lend. Therefore, the Trial
Court is not justified in accepting the same.
iv. When based on the charge-sheet material the Trial
Court has taken cognizance, it has erred in discharging
7 Crl.R.P.No.100014/2021
the accused, without providing opportunity to the
prosecution to prove the allegations in the charge-
sheet. Viewed from any angle, the impugned order is
not sustainable and prayed to allow the petition, set
aside the same and permit the prosecution to lead
evidence.
4. In support of his arguments, the learned counsel
for complainant/State has relied upon the following
decisions.
(1) State of Rajasthan Vs. Ashok Kumar
Kashyap (Ashok Kumar Kashyap)1
(2) State through Dy.Superintendent of Police
Vs. R.Soundirarasu, etc. (Soundirarasu)2
5. On the other hand, learned counsel Sri. Shankar
P. Hegde, representing the respondent-accused supported
the impugned order and contending that the Investigating
Officer has deliberately not taken into consideration the
known source of income of the accused and consequently,
1
(2021) 11 SCC 191
2
(2022) AirOnline SC 281
8 Crl.R.P.No.100014/2021
resulted in filing charge sheet showing disproportionate
assets of accused at 49.42%. He has not taken into
consideration the opening balance of ₹12,00,000/-; has not
calculated the agricultural income correctly; not taken into
consideration the income of the wife and also the loan
borrowed by the accused and his wife from their friends. The
valuation of the house is also incorrectly made. He has also
erred in income accrued the investment in PPF account and
also the investment made by the brother of accused. He has
also erred in adding the value of the gold biscuits and assets,
which are already declared towards disproportionate assets.
The calculation made towards family expenses is also
incorrect. He has also erred in showing that accused is
having a dog and calculating its expenses. He would submit
that the Trial Court has rightly calculated the income and
expenditure and allowed the discharge application and there
are no justifiable grounds to interfere with same.
6. In support of his arguments, the learned counsel
for accused has relied upon the following decisions:
9 Crl.R.P.No.100014/2021
(1) Sripada Gouda V/s State by Karnataka
Lokayuktha Police Station, Dharwad
(Sripada Gouda)3
(2) The State by Lokayukta Police Station,
Karwar V/s Shashidhar (Shashidhar)4
(3) Sathish S V/s The state of Karnataka By
Karnataka Lokayuktha, Kolar District
(Sathish S.)5
7. Heard arguments and perused the record.
8. Before referring to the facts, it is necessary to
refer to the decisions relied upon by the learned counsel for
the State represented by Lokayukta.
9. It is held in Ashok Kumar Kashyap, that at the
stage of Section 227 i.e, framing charge, the Court is
required merely to sift evidence in order to find out whether
or not there is sufficient ground for proceeding against the
accused. The sufficiency of grounds would take within its fold
3
2012 SCC OnLine Kar 8883.
4
Cri.P.No.11008/2013, dated 26.03.2019.
5
W.P.No.22483/2023 and connected matters.
10 Crl.R.P.No.100014/2021
nature of evidence recorded by police or documents
produced before the Court, which ex facie disclose that there
are suspicious circumstances against the accused so as to
frame a charge against him. If it comes to the conclusion
that there is sufficient ground to proceed, he will frame
charge under Section 228 Cr.P.C, if not, he will discharge the
accused. While exercising its judicial mind to facts of the case
in order to determine whether case for trial has been made
out by prosecution, it is not necessary for Court to enter into
pros and cons of matter or into weighing and balancing of
evidence and probabilities which is really function of Court,
after trial starts. At the stage of framing of charge and/or
considering discharge application, mini trial is not
permissible. The Hon'ble Supreme Court further held that at
the stage of framing of charge and/or discharge application,
the defence of accused on merits cannot be taken into
consideration.
10. In Soundirarasu the Hon'ble Supreme Court held
that the term "known sources of income" used in Section 13
11 Crl.R.P.No.100014/2021
(1) (e) would mean sources known to prosecution and not
sources within knowledge of accused. It is for accused to
account satisfactory for assets in his hand. Accused cannot
make an attempt to discharge onus upon him at the stage of
discharge. At the stage of discharge, the Court has to only
look into prima facie case and decide whether the case put
up by prosecution is groundless. On merits, the Hon'ble
Supreme Court further held that the High Court has erred by
enquiring into material produced by accused persons,
comparing with information compiled by investigation agency
and pronouncing a verdict saying that the explanation
offered by the accused persons deserves to be accepted. It
was further held by the Hon'ble Supreme Court that at the
stage of framing charge, the accused does not have a right
to afford a chance to explain the alleged dis-proportionate
assets to Investigating Officer, before filing of charge sheet.
11. The Hon'ble Supreme Court further held that the
expression for which the public servant cannot satisfactorily
account, refer to the onus or a burden on the accused to
12 Crl.R.P.No.100014/2021
satisfactorily explain and account for the assets proven to be
possessed by the public servant. This burden is on the
accused as the said facts are within his special knowledge.
The explanation to Section 13(1)(e) is a procedural Section
which seeks to define the expression 'known source of
income' as 'sources known to the prosecution' and not to the
accused. The explanation applies and relates to the mode
and manner of investigation to be conducted by the
prosecution, it does away with the requirement and necessity
of the prosecution to have an open, wide and rowing
investigation and enquiry into the alleged source of income
which the accused may have. It curtails the need and
necessity of the prosecution to go into the alleged sources of
income which a public servant may or possibly have but are
not legal or have not been declared.
11.1. The Hon'ble Supreme Court further held that
the undeclared alleged sources are by their very nature are
expected to be known to the accused only and are within his
special knowledge. The effect of the explanation is to clarify
13 Crl.R.P.No.100014/2021
and reinforce the existing position and understanding of the
expression "known source of income", i.e, the expression
refers to sources known to the prosecution and not sources
known to the accused. The prosecution can rely upon the
information furnished by the accused to the authorities under
the law, rules, and orders for the time being applicable to a
public servant. No further investigation is required by the
prosecution to find out the known sources of income of the
accused/public servant.
11.2. The Hon'ble Supreme Court further held that
the word groundless used in Section 239 Cr.P.C. means that
there must be no ground for presuming that accused has
committed the offence. It means the material placed before
the Court do not make out or are not sufficient to make out a
prima facie case against the accused. If no prima facie case
regarding the commission of any offence is made out, it
would amount to a charge being groundless. The only
consideration at the stage of discharge or charge is as to
whether the allegation/charge is groundless. This would not
14 Crl.R.P.No.100014/2021
be the stage for weighing the pros and cons of all the
implications of the materials, not for sifting the materials
placed by the prosecution. The exercise at the stage of
discharge or charge is to be confined to considering the police
report and the documents to decide whether the allegations
against the accused can be said to be groundless. The test
which may, therefore, be applied for determining whether the
charge should be considered groundless, is that where the
materials are such that, even if unrebutted, would make out
no case whatsoever.
12. In the light of the ratio in the above decisions, it is
necessary to examine whether there is sufficient material to
frame charge against the accused persons and despite the
same, whether the Trial Court has erred in discharging them
by taking into consideration the material relied upon by the
accused, which would be their defence at the trial. The
perusal of the impugned order makes it amply clear that
instead of examining whether there is a prima facie case to
frame charge against the accused or whether the charges
15 Crl.R.P.No.100014/2021
levelled against the accused in the charge sheet is
groundless, the Trial Court has indulged itself into the
exercise of examining the entire material in the charge sheet
in the light of the defence put forth by the accused, which is
required to be appreciated at the trial after providing
opportunity to the prosecution to establish the allegations
against the accused person.
13. The accused has claimed that when he joined
service he had ₹12,00,000/- and it ought to have taken and
the Investigating Officer has failed to take the same into
consideration. As per the investigation though in the APR for
the year 1996-97, the accused has stated that he is having
₹12,00,000/- cash on hand, but failed to produce any
documents and therefore it is not taken into consideration.
Despite the fact that the employer has not challenged his
claim, burden is on the accused to prove the said fact at trial.
Normally it is found that on the ground that the first APR
would not be questioned by the employer, the employee is
tent to show exaggerated figure of owning assets and later
16 Crl.R.P.No.100014/2021
adjusting the same for the subsequent acquisition through
bribe.
14. Since in respect of four years the accused has
shown his agricultural income as ₹3,70,000/-, the
Investigating Officer has rightly taken it as ₹92,500/- per
year. Of course at the trial it is for the accused establish that
per year he had income of ₹3,70,000/-.
15. The accused has claimed that his wife has
barrowed ₹9,00,000/- from Dr.Rehana and ₹13,00,000/-
from Dr.G.Chandrashekar his colleagues. Similarly he has
barrowed ₹12,00,000/- from Dr.G.Chandrashekar and
₹15,00,000/- from Dr. Mohammed Shafiuddin. Undisputedly
if both accused and his wife wanted to borrow money from
any other person including his colleagues, it was necessary
for the accused to seek permission of his employer and also
disclose the purpose of which the same is barrowed. It is also
necessary for his colleagues to seek permission of their
employer to lend the money to the accused and his wife.
17 Crl.R.P.No.100014/2021
While granting permission the employer is required to
examine whether the person lending is having dealings with
the accused and whether they are having financial capacity
to lend the same from legitimate source.
16. Not taking permission from the employer either to
borrow or to lend may not be serious misconduct under the
service rules. However, it may be a ploy to convert the
amount received by illegal means into a legitimate source. It
may be a quid pro quo between the colleagues lending
through cheques or transfer of money from accounts to
legitimized the ill gotten money as a legitimate source. In
several government departments where corruption spread
from top to bottom, to accept APRs without questioning the
same. Despite the fact that the payments are made and
received through cheques, it is open to the Trial Court to
examine whether the lender had legitimate source to
advance such huge amount to the accused and his wife,
whether they are reflected in the income tax returns, if so,
whether they are true entries. Therefore, the Trial Court is
18 Crl.R.P.No.100014/2021
not justified in accepting the defence of the accused at the
stage of framing charge. It is matter to be decided at the
trial.
17. While making the valuation of the residential
house under construction, based on the stage of construction
the Investigating Officer has taken its value. The accused
has claimed that he has received construction material on
credit basis but failed to substantiate the same and therefore
the Investigating Officer is justified in valuating the same at
`74,25,000/-. It is for the accused to substantiate that the
valuation made is not correct. At this stage of deciding the
application under Section 239 of Cr.P.C., Trial Court is not
justified in indulging in making evaluations without providing
opportunity to the prosecution to lead evidence.
18. So far as the purchase of property No.5993/2010-
11 at Suvarnamma Layout, Ballari, though it is stated that
three persons have contributed by issuing separate cheques.
Based on the investigation, the Investigating Officer has
19 Crl.R.P.No.100014/2021
come to the conclusion that a accused has
spent ₹3,42,887/-. Similarly, on investigation, it is found that
fixed deposit of ₹5,00,000/- standing in the name of
accused is not invested by his brother B.K.Janakiram and it
was gift not a by him to the accused. Of course, the accused
is required to take permission from his employer to accept
the said gift and the burden on him to prove that his brother
had ₹5,00,000/- to invest in the fixed deposit. Similarly, it is
open to the Trial Court it is examine whether the gold
biscuits weighing 116.570 grams found in the locker and
disclosed in the APR is acquired through legitimate source
and rightly ₹3,49,710/- being the value of the said gold
biscuits shown towards assets side.
19. Similarly, the valuation of the house hold articles
is made by the investigating officer as per the guidelines and
on the basis of material available at the raid. Based on the
lifestyle of the accused and his family members the
expenditure is calculated.
20 Crl.R.P.No.100014/2021
20. The Trial Court has exceed its power and indulging
in appreciating the charge sheet material in the light of
defence that would be available to the accused at the trial.
Without providing opportunity to the prosecution to examine
the witnesses and if necessary cross examining those
witnesses who have said to have lent loan to the accused.
Of course accused would get opportunity to lead defence
evidence, in which event the prosecution is required to cross
examined them to enable the Court to decide whether their
evidence is acceptable. In the light of the ratio in decisions of
the Hon'ble Supreme Court in Ashok Kumar Kashyap and
Soundirarasu refereed to supra, the impugned order has
not only caused gross miscarriage of justice, but also suffers
from manifest illegality, calling for interference by this Court.
21. In the light of the decisions of the Hon'ble
Supreme Court in Ashok Kumar Kashyap and
Soundirarasu, the decisions relied upon by the learned
counsel for the accused are not applicable to the case on
hand.
21 Crl.R.P.No.100014/2021
22. In the result, the petition filed by the State
deserves to be allowed and the impugned order is liable to be
set aside and accordingly the following:
ORDER
1. Criminal Revision Petition filed under Section 397 R/w 401 of Cr.P.C. by the State represented by Lokayukta police is allowed.
2. The impugned order dated 31.01.2020 in Special Case No.214/2017 on the file of Special Judge (Lokayukta) and Principal Sessions Judge, Ballari is hereby set aside.
3. The Trial Court is directed to frame charge against the accused and proceed with the matter without unnecessary delay.
Sd/-
(J.M.KHAZI) JUDGE KBM/sdu/smp