Karnataka High Court
T. Nagaraj S/O T. Basappa, vs Chamarajnagar Lokayukta Police, on 23 March, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.101438/2016
BETWEEN
1. T. NAGARAJ S/O T. BASAPPA,
AGE: 50 YEARS,
OCC: COMMERCIAL TAX OFFICER (STCP)
R/O: 1st CROSS, N.C. COLONY,
HOSAPETE.
2. G.N. PRAKASH S/O G. NAGENDRA RAO
AGE: 51 YEARS,
OCC: COMMERCIAL TAX OFFICER (STCP)
R/O: A.T. NAGER HADDINAGUNDA ROAD
BALLARI.
3. HANUMANTHA SHETTY
S/O LATE RAMACHANDRA SHETTY
AGE: 58 YEARS, OCC: SDA AT (STCP)
R/O: MATHADAKERI HARAPANAHALLI CITY
DIST-DAVANAGERE
4. RAMANAGOUDA
S/O SHARANAPPA GOWDA, AGE: 54
YEARS,
OCC: D-GROUP SERVANT (PEON)
R/O: AMARAVATHI II CROSS,
HOSAPETE CITY. ... PETITIONERS
(BY SMT.SUNITHA P.KALASOOR, ADV.)
AND
1. CHAMARAJNAGAR LOKAYUKTA POLICE,
REPRESENTED BY POLICE SUB INSPECTOR
CHAMARAJNAGAR REPRESENTED BY
2
SPECIAL STATE PP, DHARWAD BENCH,
DHARWAD.
2. THE ANTI CORRUPTION BUREAU
BALLARI DIVISION,
REPRESENTED BY THE SPECIAL
STATE P.P.,HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENTS
[By SRI.MALLIKARJUNSWAMY B. HIREMATH,
SPL. SPP, (LOK)]
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE CRIME NO.2 OF
2016 DATED 19.09.2016 FILED BY THE 2ND RESPONDENT
THE ANTI CORRUPTION BUREAU BALLARI AGAINST THE
PETITIONERS UNDER SECTION 13(1)(d), (i)(ii)(iii), 13(1)(e)
READ WITH 13(2) OF P.C. ACT AND TO ISSUE SUCH OTHER
ORDER OR TO ISSUE SUCH OTHER DIRECTIONS AS THE
HON'BLE COURT DEEMS FIT IN PECULIAR FACTS AND
CIRCUMSTANCES OF THE CASE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.02.2017, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT
PASSED THE FOLLOWING:
ORDER
This petition is filed seeking quashing of the FIR IN Crime No.2/2016 dated 19.9.2016 registered by the second respondent - Anti Corruption Bureau (hereinafter referred to 'ACB' for short), Ballary, against the petitioners u/s.13(1)(d), (i)(ii)(iii) and 13(1)(e) read with Section 13(2) of the Prevention of 3 Corruption Act (hereinafter referred to as 'PC Act' for short.
2. I have heard the arguments of the leaned counsel for the petitioners Smt.Sunitha P. Kalasoor, and also the learned Spl. State Public Prosecutor (Lok) for the respondents Sri Mallikarjunswamy B Hiremath. I have carefully perused the records.
3. I feel it is just and necessary to have brief factual matrix of this case before adverting to the grounds urged and the arguments submitted by the respective counsels:
The Hon'ble Upa-lokayuktha received a credible information about the mal-administration and irregularities in the office of Commercial Tax Check Post, Hagari Taluk, Bellary District. On the basis of such information Upa-lokayuktha felt that some investigation has to be conducted to ascertain such mal-administration. Therefore, having satisfied himself on the basis of such credible information, he registered a case in No.COMP/ UPALOK/BD/1430/2016 dated 27.8.2016 and issued a search warrant by suomoto 4 taking cognizance u/s.7(2) and Section 9 of the Karnataka Lokayuktha Act, 1984. The said search warrant was issued authorising Sri Ravi Kumar, Superintendent Police, Karnataka Lokayuktha, Mysuru to visit the above said office with such assistance as may be required, to use if necessary reasonable force for to execute the warrant. The warrant also authorised to search any part of the above said office seize and take possession of the files and documents and any other records relevant for the purpose of investigation, found in the custody of any official/officer and forthwith bring before the Lokayuktha, with an endorsement regarding the execution of the same.
On the basis of the above said search warrant, the Police Superintendent, Lokayuktha along with panch witnesses and the Police Inspector Sri K.R. Gopikrishn, at about 5.00 a.m., on 23.8.2016, they went to the said office i.e., Commercial Tax Check Post, Hagari situated at Hagari Ballary - Gunthakal National Highway and raided the said office. The petitioners were present in the office. After showing the warrant issued by the 5 Upa-lokayuktha, the search was conducted. During the course of the above said search, the Lokayukta police found a plastic bag in a Godrej Almirah containing a sum of Rs.15,300/-. The said amount was tallied with the receipt book produced by the petitioners which was the amount collected by way of penalty during the course of investigation by the said office.
The Lokayukta police during the course of such search, they also found an amount of Rs.1,450/- in a computer table drawer. The Lokayukta police enquired the petitioners about the said money. But they did not give any suitable answer to the Lokayukta police. The Lokayukta police also found a receipt book and a cover in the said office. But, there was nothing mentioned in the receipt book. However, in the said cover, they also found 51 stamps (Indian Flag) with cash amounting to Rs.140/-. The petitioner No.1 has also produced a letter dated 5.3.2016 along with the said 400 stamps each worth Rs.10/- but all the stamps were in tact and no stamp was sold. Therefore, the Lokayukta police found a total amount of Rs.1,590/- and 51 old stamps. 6 As there was no proper explanation for keeping this amount of Rs.1,590/- without any receipt or accounting, they suspected that these amounts were collected by misusing their official duties or office. Therefore, they seized all those documents during the course of such investigation.
On the basis of the above said preliminary investigation by the Lokayukta police and on the basis of the search warrant issued by the Hon'ble Upa- lokayuktha, they suspected the said amount of Rs.1,590/- must have been collected by the petitioners while discharging their duties as public servants and they have not given any explanation for the same. Therefore, they felt they must have committed the offence under the above said provisions under the PC Act u/s.13(1)(d), (I)(ii)(iii), 13(1)(e) read with Section 13(2) of the PC Act.
4. Having come to such conclusion, though the Police Inspector attached to Karnataka ACB Ballary District, Ballary, on which basis the police have registered a case in Crime No.2/2016 for the above said 7 offences, which proceedings is sought to be quashed by way of this Crl. Petition.
5. The leaned counsel for the petitioners has seriously contended before this Court that the Lokayukta police had no jurisdiction on the basis of the search warrant issued by Upa-lokayuktha to investigate into the offences under PC Act as the said power is vested with ACB by virtue of the notification issued by the Government dated 19.3.2016. Secondly, she contends before this Court that even if there is any jurisdiction to them, they should have registered a case before going for investigation. Therefore, without registering any FIR by the Lokayukta police, search, seizure and investigation done by them is without jurisdiction. Thirdly, she contends before this Court that at the time of inspecting the spot, raiding the said office of the petitioners when they found that some offences have committed by them at that time itself, they have not handed over the investigation to ACB but they continued their search and seizure and thereafter, after long lapse of time, lodged the FIR on 17.9.2016. 8 There is a long delay of 25 days in submitting the SAID FIR, report to the ACB Police. She further contends that ACB police have wrongly registered a case on the basis of the above said information by the Lokayukta police and she contends that they have no jurisdiction to further investigate the matter because virtually the investigation has been completed by the Lokayukta police themselves.
6. The learned counsel also relied upon various decisions in this regard. I would like to consider them little later.
7. Per contra, the counsel appearing for the respondents Lokayuktha, submitted that Upa- lokayuktha has got jurisdiction to issue warrants as per Section 10 of the Karnataka Lokayuktha Act. What ever has been done by Lokayukta police is only with an intention to ascertain the mal-administration as directed by Upa-lokayuktha, but during the course of such investigation with regard to the mal-administration, they suspected that the petitioners have committed the offences under the PC Act. Having come to know about 9 the same, after search and seizure, though with some delay, they have rightly submitted the report by way of FIR to the ACB Police. Therefore, the entire process by the Lokayukta police is only preliminary inquiry to ascertain the mal-administration. Therefore, the question of investigation without jurisdiction does not arise.
8. The learned counsel further contends that by virtue of the notification dated 19.3.2016 issued by the Government, the Lokayukta police have no jurisdiction to investigate any offence under the PC Act. Therefore, after registering the FIR which is challenged before this Court, ACB police are investigating the matter. Therefore, there is no illegality or irregularity committed either by the Lokayukta police or by the ACB Police. Therefore, he contends that the statutory power which has been given to ACB to investigate the offence cannot be curtailed at this stage without there being any strong reasons. Hence, he requested to dismiss the petition. 10
9. Now, let me examine the decisions cited by the leaned counsel for the petitioners whether they are actually pressed into service in this case.
10. The learned counsel for the petitioners have relied upon the decisions of this Court between: (1) L. Shankaramurthy Vs. State by Lokayukta Police, reported in 2012(5) KLJ 545; and (2) Girish Chandra and another Vs. State by Lokayukta Police, Yadgir, reported in 2013 (5) KLJ 470(DB). The learned counsel for the petitioners have relied upon these rulings to convince this court that the investigating Officer while investigating the matter who receives a credible information with regard to the commission of any cognizable offence, it is his bounden duty to register a crime and then only he has to proceed for investigation. If he embarks upon the investigation first and thereafter comes back, with the seized articles and registers a case, then such investigation is bad in law and the same is vitiated by serious procedural irregularity which amounts to illegality such proceedings 11 are to be quashed. There is no dispute about the above said principles.
11. There are divergent rulings which enunciate that the preliminary inquiry done prior to Registration of a case is not bad and in various decisions it is also considered that it all depends upon the facts and circumstances of each case under which the preliminary inquiry is required to be made. Ultimately, the Hon'ble Apex Court in a decision reported in (2013) 8 SC 1 in Lalith Kumari Vs. Government of UP has laid down certain principles as to under what circumstances, the preliminary inquiry is allowed prior to Registration of a case. At paragraph 12, some conclusive directions have been issued by the Supreme Court which are enumerated below:
"Conclusive/Directions:
111. In view of the aforesaid discussion we hold:
(1) Registration of FIR is mandatory u/s.154 of the Code, if the information discloses commission of a cognizable offence 12 and no preliminary inquiry is permissible in such a situation.
(2) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(3) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(4) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received but only to ascertain whether the information reveals any cognizable offence.13
(5) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(6) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes.
(b) Commercial offences.
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches
in initiating criminal prosecution, for
example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay."
12. Looking to the above said guidelines, the relevant guidelines which are applicable to the present case are that the Registration of FIR is mandatory u/s.154 of the Code if the information discloses commission of cognizable offence and no preliminary 14 inquiry is permissible in such a situation (2) if the information received does not disclose a cognizance cognizable offence but indicates necessity for an inquiry, then preliminary inquiry may be conducted to ascertain whether cognizable offence is committed or not?
13. On the basis of the above said guidelines, it is clear that if the inquiry discloses commission of cognizable offence, the crime must be registered and the Police Officer cannot avoid his duty of registering a case, if cognizable offence is disclosed. However, if there is any embellishment or doubt with regard to the commission of cognizable offence and the investigating Officer cannot with all certainty ascertain the commission of cognizable offence, then he can conduct a preliminary inquiry but the scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received only to ascertain whether the information reveals any cognizable offence.
14. Though the learned counsel has relied upon the above said rulings, in my opinion, the above said 15 rulings are not fitting to the facts of this particular case because according to the learned counsel, the Lokayukta police have no jurisdiction either to conduct preliminary inquiry or to register a case wherein the offences are alleged under the Prevention of Corruption Act. Therefore, the preliminary inquiry conducted by the Lokayukta police is vitiated and that the inquiry subsequent to Registration of the case by the Anti Corruption Bureau is also bad in law. In this background, now let me consider what is the inquiry that has been conducted by the Lokayukta police whether such inquiry is permissible under any law and after that inquiry, filing of the report before the Anti Corruption Bureau is proper and correct.
15. There is no dispute that from 19.3.2016 by virtue of the notification issued by the Government, the Lokayukta police have no jurisdiction to register any case under the Prevention of Corruption Act and investigate the matter. The said power of Lokayukta police has been withdrawn by the Government vide notification dated 19.3.2016 in No.HD 71/POSIPA (IV) 16 2016 dated 19.3.2016, the Government in exercise of the powers conferred by clause (s) of Section 2 of the Cr.PC, 1973, the Government of Karnataka declared that the office of the ADGP, Anti Corruption Bureau, Bengaluru as Police Station having jurisdiction for the whole of Karnataka as local area included within its Police Stations. On the same day, the Government has also superceded the notification earlier issued in HD 292 PEG 2000 dated 8.5.2002 and HD No.334 PEZ 2002 dated 5.1.2002 under which notification, the Government has empowered the Lokayukta police to exercise the powers u/s.17 of the Prevention of Corruption Act and also to register and investigate the offences under the said Act. The learned counsel for the respondent also did not dispute this particular notification. Therefore, it is crystal clear that from 19.3.2016, the Lokayukta police have no jurisdiction to register and investigate the cases under the Prevention of Corruption Act.
16. Be that as it may, this is a case where Lokayukta police neither registered any case under the 17 Prevention of Corruption Act, but they have conducted the inquiry under the Lokayuktha Act. There is no dispute that, the Hon'ble Lokayuktha has got power to issue search warrant u/s.10 of the Karnataka Lokayuktha Act for the purpose of ascertaining any mal- administration and irregularities. I have bestowed my attention to the definition of mal-administration as per Section 2(10) of the Karnataka Lokayuktha Act. Section (2)(10) of the Act reads thus -
2(10) "mal-administration" means action taken or purporting to have been taken in the exercise of administrative functions in any case where, -
(a) such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(b) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay;"
The leaned counsel for the petitioners submitted that, the order of search warrant issued does not refers to any mal-administration.18
17. On careful perusal of the above said provisions, the mal-administration is not restricted to any particular Act. It refers to any administrative procedure or powers governing such action if it is unreasonable unjust practice or improper or discriminate or wilful negligence or undue delay in taking such action or administration procedure or practice governing such action involved undue delay. That means to say for the purpose of ascertaining whether there was any negligence on the part of the higher authorities and any inaction in taking administrative procedure then also Lokayukta police has got powers to investigate u/s.7 of the Lokayuktha Act. Section 7 empowers Upa-lokayuktha to investigate into any matter which are coming under the mal- administration of a particular department.
18. In this background, as I have already referred to, search warrant was issued by the Upa- lokayuktha exercising the powers u/s.10 of the Karnataka Lokayuktha Act, 1984. Therefore, at any stretch of imagination, it cannot be said that the Upa- 19 lokayuktha has directed the Lokayukta police to investigate into any offences under the Prevention of Corruption Act, but directed to ascertain whether there was any mal-administration or irregularities committed in the Commercial Tax Check post, Hagari, Bellary District. What is the exact credible information received by the Hon'ble Upa-lokayuktha in order to issue such search warrant is not questionable and it is the discretion of the Upa-lokayuktha to keep that information confidential, but only he has to satisfy himself that such information is sufficient to pass appropriate orders under the Karnataka Lokayuktha Act. Therefore, the argument of the learned counsel that the Lokayukta police should have registered a case first before going to the office of the petitioners for the purpose of inquiry or investigation is not tenable.
19. Now coming to the second part of the argument of the learned counsel that, the Lokayukta Police soon after reaching the spot enquired into the matter and thereafter submitted the report to the Anti Corruption Bureau police is bad in law. When it is 20 ascertained from the above said factual aspects that it is not a investigation done by the Lokayukta Police nor they have got any jurisdiction to investigate into the offences under the Prevention of Corruption Act, what they would have done if during the course of such inquiry as ordered by the Upa-lokayuktha police, if they come to know that some cognizable offence has been committed or they suspect the commission of cognizable offence by the petitioners. In that background, the court has to see the provisions under the Lokayuktha Act and the procedure contemplated under Cr.PC. The Lokayukta police were also empowered and declared as Police Stations earlier. If under the Lokayuktha Act particularly u/s.10 if a warrant is issued how the Lokayukta police can conduct inquiry has to be looked into. Section 10(2) clearly empowers the Lokayukta police to conduct any inquiry or investigation as per the provisions of Cr.PC 1973, Section 10(2) reads as follows:
"10. Issue of search warrant, etc., -
(1) xxxx (2) The provisions of the Code of Criminal Procedure, 1973 relating to search 21 and seizure shall apply, so far as may be, to searches and seizures under sub-section (1)."
Therefore, it is clear that for the purpose of search, seizure, Lokayukta police have got jurisdiction to investigate the matter u/s.7 of the Karnataka Lokayuktha Act, search and seize any materials as empowered under the warrant.
20. Even otherwise, Section 41 of the Cr.PC, to some extent deals with the arrest of persons, search and seizure of some articles under peculiar circumstances. Section 41 of Cr.PC deals with arrest of persons. The relevant provision which are required to be considered by this court is Section 41(1)(a) & (d) are the relevant provisions, which are required to be considered by this court, which reads as follows:
"Sec.41(1)(a) Who commits, in the presence of a police officer, a cognizable offence;
(b) to (c) : xxx xxx xxx xxx xxx xxx
(d) in whose possession anything is found
which may reasonably be suspected to be stolen property and who may reasonably 22 be suspected of having committed an offence with reference to such thing;"
21. The above said section confers very wide powers on the police that they may act swiftly for the prevention or detection of cognizable offences without formality and delay. The court should therefore be particularly vigilant to see that the powers are not in any way abused or lightly used for the satisfaction of private feelings or of designing the complainants. In this case particularly, the arrest of petitioner and seizure of the properties which are found by the police during inquiry, in my opinion, is not in exercise of abuse of the powers entrusted to them under Section 41 of Cr.P.C. Of course, the arrest of a person without justification is one of the most serious encroachments upon the liberty of such person. The duty of the police when they arrest without warrant, is no doubt, to be quick to see the possibility of crime , but equally they ought to be anxious to avoid mistaking an innocent for the guilty. The power given is discretionary to the police to arrest or search and seize the properties. However, such powers are to be exercised under 23 exigency and circumstances. Even under some mis- conception if the police officer has arrested and seized certain articles, it will not vitiate the proceedings, but that will also fall under the above said provisions.
22. Section 51 of Cr.PC refers to what the Police Officer should do if a person is arrested under Section 41 of the Code, which reads as follows:
"Sec. 51 Search of arrested person.-(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant and cannot legally be admitted to bail or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession 24 by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency."
(Emphasis supplied) Section 51(1) first part, as could be seen, empowers the Police Officer, who has a warrant with him to arrest a person. But the second part of the said section discloses that whenever the police officer arrests a person without warrant and cannot legally be admitted the persons arrested, to bail or is unable to furnish bail, then such officer making the arrest may search such person and place in safe custody all articles other than the necessary wearing-apparel found upon him and where such article is seized from the arrested person, the receipt showing the articles taken possession by the Police Officer shall be given to such person. Therefore, whenever the police officer arrests a person without warrant and if any search is made, then also such articles can be kept in safe custody. 25
23. Further added to the above, Section 56 of Cr.PC also guides the Police Officer who has arrested a person without warrant as to what he has to do. Section 56 reads as follows:
"Sec.56 Person arrested to be taken before Magistrate or officer in charge of Police Station,- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station."
(Emphasis supplied)
24. A conjoint reading of Sections 41, 51 and 56 makes it clear that, if a Police Officer who without warrant arrests a person and seize some articles, without unnecessary delay and subject to the provisions of Cr.PC, take or send the said person arrested before a Magistrate having jurisdiction over the case or before the officer in charge of the police station. Therefore, this gives an indication that if the police officer, while exercising powers under any law for the time being in force, who has no jurisdiction to register a case or 26 conduct the investigation any further, but though by exercising powers u/s.41 having arrested a person and seized some articles, it is his duty to ascertain who is the competent police officer or police station who has jurisdiction to investigate the matter and then without any unnecessary delay, such person, who was arrested and such articles which were seized should be placed before such officer in charge of the police station.
25. Now, let me go back to the factual aspects of this case with reference to the above said provisions of law. By virtue of the warrant issued by the Lokayukta, the Lokayukta police had been to the office of the petitioners in order to ascertain that there was any mal- administration in the said office. But during the course of such inquiry or investigation, they have suspected that an amount of Rs.1,590/- must have been acquired by the petitioners by misusing their powers as public servants. Therefore, they suspected that the said act of the petitioners may fall under the provisions of the PC Act. Therefore, the Lokayukta police rightly lodged an FIR before the ACB, Ballary District on 17.09.2016 27 explaining all the above said aspects as to how they have gone to the office of the petitioners and how they suspected the commission of cognizable offence by the accused persons. Of course, there is a delay in lodging the FIR. Though the investigation or inquiry has been done by the Lokayukta police on 23.8.2016, but they have lodged the FIR on 17.09.2016. In the mean time, the records also show that the petitioners have taken anticipatory bail. The delay itself in my opinion is not sufficient to throughout the entire case. Once, there is an allegation made suspecting the commission of a cognizable offence, the ACB police have no option except registering the case but it does not mean to say that they have to file charge sheet against the accused persons. But they have to investigate into the matter if necessary even after registration of the case they can conduct inquiry in order to ascertain whether such allegations are sufficient to attract any provisions under the PC Act, they may not file any charge sheet but they have to file appropriate report before the court. 28 Therefore, it cannot be said that registration of the case by the ACB police is bad in law.
26. The leaned counsel for the petitioners also submitted that there is no material with regard to the demand and acceptance of any money by the accused persons so as to attract Section 13(1)(i)(ii)(iii) and also there is no preliminary report or source report to attract Section 13(1)(e) of the Act. Therefore, the registration of the case is bad in law by the ACB police.
27. The allegations made in the report submitted by the Lokayukta police discloses that they have made allegations that the petitioners have not given any account for the amount found with the petitioners. Therefore, they only suspected that the petitioners might have committed the offence u/s.13(1) of the PC Act. In order to attract Section 13(1)(d) of the Act, if a person by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as 29 a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; that itself is sufficient to attract the provisions. The ACB police have to examine that whether Rs.1,590/- was obtained by the accused persons by corrupt or ilelgal means for themselves or for any other person, while exercising their duty as public servants, for their beneficiary advantage without any public interest. Here, the question of demand and acceptance does not arise in order to attract Section 13(1)(d) of the Act. However, it has to be tested by the investigating Officer whether any corrupt act or illegal act has been done by the accused persons. Of course, mere recovery of a money from the custody of a person that itself is not sufficient to hold that he has received that amount by corrupt or illegal means. It has to be explained by him as to how he acquired the said money, valuable thing for beneficiary advantage.
28. The report submitted by Lokayuktha discloses that the Lokayukta police have made allegations that the petitioners have not given any explanation to the 30 amount found with them. Therefore, the Lokayukta police suspected that the petitioners might have received that amount by abusing their position as public servants and might have committed the offence punishable u/s.13(1)(d) of the Prevention of Corruption Act. Section 13(1)(d) of the Act says that if (i) a person by corrupt or illegal means, obtains for himself or any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. If any one of the ingredient is attracted, then the provisions of Section 13(1)(d) of the Act is also attracted. The Anti Corruption Bureau Police have to examine whether possession of an amount of Rs.1,590/- is properly explained by the accused persons. On taking their explanation and also looking to the circulars issued by the Government in No.VCR IAZ CR-23.B:93-94 dated 1.12.1999 issued by the 31 Commissioner of Commercial Taxes, Bengaluru, wherein the said office has made it clear that the officials of the said department while entering into the office have to declare as to what is the amount exactly they were having at the time of entering the office and that amount should not exceed 25% of their salary. Whether by virtue of this circular, the amount which was found with the petitioners are deemed to be explained is also to be looked into by the ACB police before lodging any report to the court after due inquiry or investigation. So that the investigating agency can avoid filing of a charge sheet unnecessarily if it finds that the information given by Lokayukta police may not be sufficient to file charge sheet so that unnecessary harassment to the petitioners can be avoided.
29. It is also to be borne in mind by the ACB police that mere recovery of money from the custody of a person bereft of any other materials to show that the said money was obtained by the petitioners by corrupt or illegal means by abusing their position as public servants.
32
30. The second leg of the arguments of the learned counsel is also very curious with regard to the attraction of Section 13(1)(e) of the Act. Section 13(1)(e) of the PC Act says that - "if any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income." Therefore, mere possession of Rs.1,590/- sofar as this case is concerned, at any stretch of imagination cannot be said that the said amount is exceeding the pecuniary resources of the petitioners. However, the ACB police have to examine whether the provisions of Section 13(1)(e) of the Act is attracted to proceed against the accused persons depending upon their investigation. The ACB Police also have to examine whether without any source report with regard to the income and expenditure statement of the petitioners, whether they can proceed to investigate the matter u/s.13(1)(e) of the Act, whether any other materials are available for them to proceed with the 33 investigation. Therefore, mere registration of a case under the above said provisions does not mean to say that the police have to file charge sheet against the accused. It all depends upon the facts and circumstances of each case. Bearing in mind the above said circumstances, the ACB police have to investigate the matter and submit appropriate report to the court in accordance with law.
31. Under the above said facts and circumstances when the ACB police are vested with statutory powers to investigate into the matter, though the FIR lodged by the Lokayukta police cannot said to be bad in law. But it is still the sound discretion of the investigating agency to ascertain whether those offences are really committed by the accused persons so as to proceed against them and thereafter, they have to submit appropriate report to the court.
32. It is made clear that if the ACB Police even after investigation without sufficient materials or basis file any charge sheet against the petitioners, the 34 petitioners are again at liberty to approach the court for their remedies.
With these observations, at this threshold stage, it may not be proper on the part of this court to quash the entire proceedings. Hence, the petition deserves to be dismissed. Accordingly, dismissed.
Sd/-
JUDGE PL*