Karnataka High Court
Sri J M Shambu Shekar vs The State By Lokayuktha Police on 10 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 571
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.176 of 2014
BETWEEN
SRI J.M.SHAMBU SHEKAR,
S/O K.S.MALLESHAPPA,
AGED ABOUT 40 YEARS,
PRESENTLY WORKING AS
MOTOR VEHICLE INSPECTOR,
OFFICE OF THE REGIONAL
TRANSPORT OFFICER,
CHIKKAMAGALUR-577 101.
...PETITIONER
(BY SRI M.S.BHAGWAT, ADVOCATE)
AND
THE STATE
BY LOKAYUKTHA POLICE,
CHIKKAMAGALUR DISTRICT,
REPRESENTED BY
ITS INSPECTOR OF POLICE,
CHIKKAMAGALUR-577 101.
...RESPONDENT
(BY SRI B.S.PRASAD, SPL.P.P.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF THE CODE OF CRIMINAL
PROCEDURE, 1973, PRAYING TO SET ASIDE/QUASH THE
PROCEEDINGS/ORDER DATED 21.01.2014 SPL.C.No.5/2014
(ANNEXURE-A) ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, CHIKKAMAGALUR.
2
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 23.01.2020 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner/accused No.1 being aggrieved by the order of taking cognizance against the petitioner by the Principal District and Sessions Judge, Chikkamagalur (hereinafter referred to as the 'Trial Court') vide order dated 21.01.2014 in Crime No.5/2012.
2. Heard the arguments of learned counsel for the petitioner/accused No.1 and Sri B.S.Prasad, learned Special PP for the respondent/Lokayuktha.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of petitioner/accused No.1 is that the respondent/Lokayuktha Police, Chikkamagalur filed charge sheet against the petitioner and three others for the 3 offence punishable under Sections 7, 8, 13 (1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act') alleging that the Inspector of Lokayuktha registered a suo motu case against the petitioner on 06.12.2012. It is alleged that on 06.12.2012, at 10.00 a.m., the complainant/Police received credible information that the accused is demanding and accepting bribe in the RTO camp at APMC Yard while collecting the arrears of tax and renewal of permit/D.L etc. through middlemen. He along with his staff and panchas while going towards the yard, the accused had already completed the process and was returning in his vehicle. The vehicle was intercepted and the amount in possession of the accused was verified with the available document. The accused had Rs.7,000/- in his pocket and was having Rs.49,150/- in excess than the amount, which was collected by issuing the receipt. The accused did not explain about the excess amount in his possession. Therefore, the Lokayuktha Inspector seized the said amount along with the notebooks belonging to the 4 driving school and also arrested the middlemen and other persons along with the accused. Thereafter, on completion of investigation, laid charge sheet against accused and others. In the meanwhile, the accused was released on bail by the Trial Court. After filing of the charge sheet, the Trial Court took cognizance of the offence under Sections 7, 8 and 13 (1)(d) read with Section 13(2) of the PC Act and Sections 468, 471 and 120(B) of IPC vide order dated 21.01.2014. The same is challenged by the petitioner by way of this revision petition.
5. Learned counsel for the petitioner/accused No.1 has contended that the Trial Court committed error in taking cognizance against the accused without verifying the FIR and other relevant documents. He further contended that the accused collected tax by issuing demand notice to a owner of the lorry. He has given explanation. The amount of Rs.49,150/- plus Rs.3,800/- were all explained by the petitioner and the document was also produced. The same was not taken into consideration by the Investigating 5 Officer. The Trial Court has not applied its mind while taking cognizance for the offences alleged by the Investigating Officer. He further contended that though the prosecution obtained sanction for prosecuting against the petitioner/accused No.1, who is a public servant working under the RTO belonging to State Government, but the sanction from the Transport Authority has been accorded only for the offences under the PC Act and no sanction was accorded for prosecuting under the IPC, as required under Section 197 of Cr.P.C. Therefore, the order of taking cognizance is required to be set aside. He further contended that there is no demand and acceptance in order to prove the offence under Section 7 of the PC Act and merely possessing some amount itself is not an offence. Therefore, prayed for allowing the revision petition.
6. Per contra, learned Spl. PP for the respondent/ Lokayuktha supported the order of the Trial Court and contended that the prosecution has already obtained 6 sanction against the accused for the offence punishable under the PC Act and there is no necessity for obtaining one more sanction under Section 197 of Cr.P.C. since the document was created by the accused persons to justify the excess amount of Rs.49,150/-, which is revealed as a forged document and, therefore, forging the document cannot be considered as an offence committed while discharging official duty. He further contended that accused No.1 did not explain the possession of excess amount in his custody when he was apprehended by the Police and he has stated that he will explain the same only through the advocate. Thereafter, the accused created a document in order to show that the amount has been paid by the CW.8/Fyroz Khan. But the very Fyroz Khan has given a statement before the Magistrate under Section 164 of Cr.P.C. that the documents were created after 8 days of the incident of arrest of the accused. Therefore, the learned counsel contended that while taking cognizance, the Court cannot meticulously verify the documents and it is not the stage for framing of charges. Therefore, he 7 prayed for dismissal of the petition. In support of his case, he relied upon the judgments of Hon'ble Apex Court as well as this Court.
7. Upon hearing the arguments and on perusal of the records, it is not in dispute that accused No.1 was the Inspector in RTO office and he was deputed for official duty on 6.12.2012 for conducting camp for inspection and renewal of Driving License, Fitness Certificate etc., and as such, he held camp at APMC Yard. After registering of the case by the Police Inspector, he along with the Police party intercepted accused No.1 on the way and seized the amount from the accused and all the four accused persons were taken into the custody. Accused No.4 is a middleman and the Police also seized 11 notebooks belonging to different driving schools. The accused was in possession of Rs.7,000/- belonging to him, which was given back to him and different bundles of currency notes were also found in his vehicle and in all Rs.49,150/- was in excess than the amount collected by issuing the receipts. Admittedly, the 8 accused has not explained as to how he got the money. After his release from the custody, the accused tried to explain that the amount belonged to CW.8/Fyroz Khan, which was received by him by issuing demand notice, but the same was not explained by him immediately when the Police apprehended the accused. Subsequently, the accused tried to show that the amount in excess was paid by CW.8/Fyroz Khan towards the tax demanded by the RTO. CW.8/Fyroz Khan gave a statement before the Magistrate under Section 164 Cr.P.C. stating that when he went to the Court premises at Chikkamagalur, he met Nagabushana and the said Nagabushana requested him to execute an affidavit in order to confirm that the said amount has been paid by CW.8/Fyroz Khan. After 8 days, he executed the affidavit in the Court premises, which shows that the accused was trying to justify and make account for the excess amount by creating a false document subsequent to his arrest. Admittedly, the sanction for prosecution has been given by the Transport Commissioner, who is the disciplinary authority for accused 9 No.1. The sanction has been accorded for prosecuting the accused under the PC Act. However, it does not reveal that sanction was also given for prosecution for the offence punishable under the IPC. Learned counsel for the petitioner has contended that as per Section 197 Cr.P.C., sanction is required for prosecuting a public servant. The judgment of Hon'ble Apex Court in the case of N.K.Ganguly vs. Central Bureau of Investigation, New Delhi reported in (2016) 2 SCC 143 has held that sanction is necessary under Section 197 Cr.P.C. before taking cognizance and issuing summons to the accused as the alleged offence was committed by the accused while discharging the duty. There is no second opinion in respect of the principle laid down by the Hon'ble Apex Court. Here in this case, the alleged offences are punishable under Sections 468, 471 and 120(B) of IPC as the document has been created by the accused subsequently with the help of one Nagabushana and CW.8/Fyroz Khan. The said document is a forged document in order to show that it is a genuine document 10 and to claim that the amount in excess found in possession of the accused has been paid by CW.8. The creation of a false document cannot be considered as the offence committed while discharging official duty. Therefore, learned counsel for the CBI has contended that sanction is not necessary. Learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of Inspector of Police and another v. Battenapatla Venkata Ratnam and another reported in 2015 AIR SCW 3282, wherein it has been held at paragraph- 11 as under:
"The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only."11
8. In view of the judgment of the Hon'ble Apex Court, if any official indulges in creating or fabricating the records, it cannot be said to be discharging of official duty. Therefore, in my considered opinion, the sanction for prosecuting the accused under Section 197 Cr.P.C. is not required. On the other hand, the offence committed by the accused under IPC requires sanction, which was already obtained by the Investigating Officer. Therefore, the contention raised by learned counsel for the petitioner that sanction is required before taking cognizance under IPC cannot be acceptable.
9. Another contention raised by learned counsel for the accused is that, Nagabushana is said to have created the document along with CW.8/Fyroz Khan, but the statement of Nagabushana is not recorded. Therefore, the accused shall be discharged. Further, he relied upon the judgment of a co-ordinate Bench of this Court in the case of R.Venkatesh Padaki vs. State of Karnataka passed in Crl.P.3150/2015 and 4722/2015 on 08.08.2018, 12 wherein this Court has quashed the proceedings on the ground that the charge sheet material placed by the prosecution in the said case has not been examined and who is the person who bribed the accused and the witnesses were not cited in the charge sheet as witnesses, the seizure panchanama also was not signed by the said witness Mallikarjuna and the FIR and the complaint have been tampered. But, here in this case, no such allegation has been made by the petitioner against the Investigating Officer. However, learned counsel for the petitioner argued that the document is said to have been created by the accused subsequent to the arrest of the accused in collusion with Nagabushana and CW.8/Fyroz Khan, which was revealed after recording the statement of the CW.8/Fyroz Khan under Section 164 of Cr.P.C. Of course, the CW.8/Fyroz Khan has given statement about creating the document and obtained by the said Nagabushana from CW.8 in order to show that excess amount has been paid by CW.8 to the accused towards the arrears of tax, but the said Nagabushana was neither arrayed as accused or 13 charge sheeted as a witness, but that itself is not a ground to discharge this petitioner. The Trial Court during the course of conducting trial, if it comes to the conclusion that the said Nagabushana also committed the offence, the Trial Court can exercise its power under Section 319 of Cr.P.C. and summon Nagabushana as accused to face the trial or else, if Nagabushana is required as a witness and if the Police has not cited him as a witness, then the Court has every power to summon the said Nagabushana as a witness either suo motu or on the application filed by the prosecution under Section 311 of Cr.P.C. Therefore, if the Investigating Officer fails to name a person as an accused or as a witness, the co-accused cannot get the benefit of discharge prior to the trial. Therefore, the said contention of learned counsel for the petitioner that the petitioner is entitled for discharge as the said Nagabushana was not cited as a witness, cannot be acceptable.
10. Learned counsel also contended that there is no witness examined to prove the person who bribed the 14 accused and therefore, when there is no demand or acceptance, the Court cannot frame the charges. He has relied upon the judgments of the Hon'ble Apex Court in the case of P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another, reported in (2015) 10 SCC 152 and Mukhtiar Singh (since deceased) through his Legal Representative vs. State of Punjab reported in (2017) 8 SCC 136.
11. On a reading of the aforesaid judgment of the Hon'ble Apex Court wherein, the conviction has been challenged, the Hon'ble Apex Court held that the prosecution has failed to prove the demand and acceptance. But here in this case, the prayer of the accused is to discharge him prior to the trial. Therefore, the judgment is not helpful to the petitioner-accused. In the case of Mukhtiar Singh's (supra), mere bald allegation of the complainant regarding demand and acceptance of illegal gratification by the accused remains uncorroborated. The Hon'ble Apex Court further held that 15 the prosecution failed to prove the charge levelled against accused beyond all reasonable doubt. The conviction has been set aside and here in this case, the trial has not yet commenced. Therefore, until the prosecution leads evidence and impeaching the evidence of the prosecution witness, the Court cannot express any opinion on the corroboration and appreciation of the documents on record as it is well settled that the probative value of the documents cannot be looked into at the time of framing of charges.
12. On over all perusal of the grounds urged by the learned counsel for the petitioner, I am not able to accept that there is any ground made out for discharge under the provision of Section 239 of Cr.P.C. The Special Judge excising the power is as good as the Magistrate having power to conduct the trial as per Chapter 19 of the Code of Criminal Procedure and trying the case as a warrant case and while exercising the power, the learned Special Judge can discharge the accused only if the charges are 16 groundless. Therefore, on perusal of the records, the material placed by the prosecution is sufficient to frame the charges against the accused as per Section 240/228 of Cr.P.C. and there is no illegality in taking cognizance of the offence against the accused. Absolutely, there is no ground made out by the petitioner for setting aside the order of taking cognizance by the Trial Court. Hence, I proceed to pass the following:
The Criminal Revision Petition is dismissed.
Sd/-
JUDGE mv