Karnataka High Court
Central Bureau Of Investigation vs Mp Singh @ Mahipal Singh S/O Late ... on 31 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.965/2005
C/W
CRIMINAL REVISION PETITION NO. 964/2005
IN CRIMINAL REVISION PETITION NO.965/2005
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(SPECIAL POLICE ESTABLISHMENT
CREATED UNDER THE DELHI SPECIAL
POLICE ESTABLISHMENT ACT, 1946)
REPRESENTED BY ITS SUPERINTENDENT OF POLICE
BELLARY ROAD
BANGALORE.
...PETITIONER
(BY SRI. P. PRASANNA KUMAR, ADV., FOR
SRI. C.H. JADHAV, ADV.,)
AND:
MP SINGH @ MAHIPAL SINGH
S/O LATE GUDHARAM
AGED ABOUT 50 YEARS
ASST. DIRECTOR (HORTICULTURE)
HORTICULTURE DEVELOPMENT SUB-DIVISION
BANGALORE CENTRAL DIVISION - II
'C' WING, II FLOOR
KENDRIYA SADAN, KORAMANGALA
BANGALORE.
NOW RESIDING AT D.9, STREET NO. 6
MANDAVALLI, FAZALLAPUR, UNCHA
DELHI-92.
... RESPONDENT
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(BY SRI. R. NAGENDRA NAIK, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 18.12.04 IN SPL. C.C. NO.
30/01 ON THE FILE OF THE XXI ADDL. C.C. & S.J., & SPL.
JUDGE FOR CBI CASES, BANGALORE.
IN CRIMINAL REVISION PETITION NO. 964/2005
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(SPECIAL POLICE ESTABLISHMENT
CREATED UNDER THE DELHI SPECIAL
POLICE ESTABLISHMENT ACT, 1946)
REPRESENTED BY ITS SUPERINTENDENT OF POLICE
BELLARY ROAD
BANGALORE.
...PETITIONER
(BY SRI. P. PRASANNA KUMAR, ADV., FOR
SRI. C.H. JADHAV, ADV.,)
AND:
SHARMA @ UK SHARMA
S/O LATE P.M. SHARMA
AGED ABOUT 43 YEARS
SECTION OFFICER (HORTICULTURE)
HORTICULTURE DEVELOPMENT SUB-DIVISION
BANGALORE CENTRAL DIVISION - II
'C' WING, II FLOOR
KENDRIYA SADAN, KORAMANGALA
BANGALORE.
NOW EIDING AT 353, SOUTH BHOPA ROAD
MUJAFARNAGAR
U.P. - 251 001.
... RESPONDENT
(BY SRI. R. NAGENDRA NAIK, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 CR.P.C. PRAYING TO SET
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ASIDE THE ORDER DATED 18.12.04, ON IN SPL. C.C. NO.
190/00 ON THE FILE OF THE XXI ADDL. C.C. & S.J., &
SPL. JUDGE FOR CBI CASES, BANGALORE.
THESE CRIMINAL REVISION PETITIONS HAVING
BEEN HEARD AND RESERVED FOR PRONOUNCEMENT
OF ORDERS, THIS DAY, PRADEEP D. WAINGANKAR J.,
PRONOUNCED THE FOLLOWING:
ORDER
These Criminal Revision Petitions under Section 397 r/w Section 401 of Cr.P.C., are arising out of an order dated 18.12.2004 in Spl.C.C. Nos.30/2001 and 190/2000 on the file of the XXI Additional City Civil and Sessions Judge and Special Court for CBI Cases, Bangalore, whereby the application filed by the revision petitioners came to be allowed and they have been discharged of the offence punishable under Sections 7, 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. Brief facts which gave raise to these revision petitions are as under:
Respondent in Crl.R.P.No.964/2005 U.K. Sharma was working as a Section Officer and the respondent in Crl.R.P.No.965/2005 M.P. Singh, was working as 4 Assistant Director in the office of Horticulture Development Sub-Division, Bangalore Central Division- II, Central Public Works Department, Koramangala, Bangalore. He was supervising the Horticulture department and maintenance work carried by Sri.V.Anand, a Registered CPWD Contractor, who had executed three contract works for Horticulture Department for the period 1999-2001. He along with U.K. Sharma was responsible for preparing and forwarding the contractors' bills to the jurisdictional Executive Engineer. Both of them demanded a bribe of Rs.22,300/- from the contractor V.Anand in order to settle his bills. They received an amount of Rs.20,000/- during the month of June 2000. On 16.09.2000, when the contractor V.Anand approached them for getting the bills clear, both of them demanded a balance bribe amount of Rs.2,300/-. As such, the contractor-V.Anand lodged a complaint on 16.09.2000 before CBI against both M.P. Singh and U.K. Sharma, the respondents in both the revision petitions. The complaint was received 5 by the CBI on the same day. On 18.09.2000, both of them were trapped while demanding and accepting a bribe amount of Rs.2,300/- from the contractor. The amount of Rs.2,300/- was recovered from M.P. Singh. A trap panchanama was drawn. Both of them were arrested. On 24.10.2000, on the strength of the complaint of V.Anand-Contractor dated 16.09.2000, crime came to be registered and a FIR has been submitted to Court at 4.15 pm. On 16.10.2000, the sanction as required under Section 6 of the Delhi Special Police Establishment Act, 1946 was obtained from the State Government. On 26.12.2000, charge- sheet came to be submitted against both of them for the offences punishable under Sections 120-B of IPC r/w Sections 7, 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. On the strength of the charge- sheet submitted, a case in Spl.C.C.No.190/2000 came to be registered against U.K. Sharma, Section Officer and a case in Spl.C.C.No.30/2001 came to be registered against M.P. Singh, Assistant Director. After furnishing 6 the investigation papers, the cases came to be posted for hearing before charge. Before framing the charge, the Special Judge heard both the Public Prosecutor and the counsel appearing for the accused and by common order dated 18.12.2004, discharged both the accused from the charges levelled against them. Aggrieved by the order of discharge, the CBI has preferred these revision petitions questioning the legality and correctness of the order.
3. Upon securing the records from the Court below, I have heard both the learned counsel appearing for the CBI and respondents/accused.
4. The point that arises for my determination is:
"Whether the impugned order of the discharge of both the accused calls for my interference?"
5. My finding is in the negative for the following reasons.
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6. Learned counsel appearing for the CBI has submitted before me that though there is sufficient material on record to frame the charges against both the accused, without taking into consideration the material on record, the Court below has discharged both the accused. He further submitted that though sanction required under Section 6 of the Delhi Special Police Establishment Act, 1946 was not obtained before the commencement of the investigation, subsequently it has been obtained and that the sanction required under Section 6 of the Delhi Special Police Establishment Act, 1946 is not a condition precedent for commencement of the investigation. Hence, he sought to set aside the order of discharge of both the accused.
7. Per contra, the learned counsel appearing for the respondents/accused has vehemently argued before me that the investigation in this case has commenced before registration of the crime and without obtaining a sanction as required under Section 6 of the Delhi 8 Special Police Establishment Act, 1946, these illegalities go to the very root of the matter and as such, the impugned order passed by the Court below is fully justified. Hence, he sought for dismissal of both the revision petitions.
8. The undisputed facts of the case are that a complaint was lodged by one V. Anand, CPWD Contractor against both the accused on 16.09.2000. On 18.09.2000, on the strength of the allegations made in the complaint, both the accused were trapped by the CBI for having demanded and accepted a bribe of Rs.2,300/-. On 16.10.2000, a sanction as required under Section 6 of the Delhi Special Police Establishment Act, 1946 has been obtained from the Government of Karnataka. On 24.10.2000, a crime came to be registered against both the accused persons on the basis of the complaint lodged by V. Anand on 16.09.2000. On 26.12.2000, a charge-sheet came to be filed against both the accused for the aforesaid offences. Therefore, from these dates mentioned above, one thing 9 is clear that the investigation in this case commenced even before the registration of the crime. On 18.09.2000, a trap was laid and both the accused were trapped while demanding and accepting the bribe amount of Rs.2,300/-, which has been recovered from the accused-M.P. Singh under a trap panchanama. It is also true that before commencement of the investigation, a sanction as required under Section 6 of the Delhi Special Police Establishment Act, 1946, was not obtained. On the other hand, the sanction has been obtained on 16.10.2000, almost after 22 days from the date of commencement of the investigation. The usual procedure in a trap case commences with recording of complaint on demand for bribe by public servant. Thereafter, the Investigating Officer registers the complaint received and submits the same along with FIR to the jurisdictional Court and two pancha witnesses are secured either from the Government Departments or independent persons. In the presence of the panchas and the complainant, a demonstration 10 regarding importance of the Phenolphthalein Powder Test and the Sodium Carbonate Test will be conducted. Notes to be given to the public officer, who is demanding bribe will be smeared with Phenolphthalein powder and entrustment panchanama will be drawn for having entrusted the notes to the complainant, so as to hand over the same to the public servant on demand. After drawing entrustment panchanama, the Investigating Officer along with two panchas and the complainant along with one witness known as shadow witness will be asked to go to the office of the public servant in order to enquire about his work, if he demands bribe amount, to hand over the notes. Thereafter, the complainant on demand by the public servant, would hand over the notes which will be witnessed by one of the shadow witness and as soon as the bribe money is accepted by the public servant, prior signal will be given to the Investigating Officer waiting outside the office and immediately, the Investigating Officer, along with another pancha and his staff will rush to the office of 11 the Government Servant, who will be trapped with the money received by him. Thereafter, by preparing a Sodium Carbonate Solution, he will be asked to dip his hands in the solution, which turn into pink colour. Money will be recovered from him and a detailed panchanama known as trap panchanama will be drawn. The Government Servant from whom bribe amount is recovered would be arrested, the investigation papers will be placed before his Appointing Authority for obtaining sanction and as soon as sanction is accorded to prosecute him, a charge-sheet will be filed before the Court. But, in this case everything has been done before registration of the crime, which is impermissible in law. In a trap case, the question of surprise raid is not expected and tenable, unlike the investigation in the case of an offence relating to assets on income disproportionate to his known source of income. The method of surprise raid is unknown in a trap case. Therefore, in all trap cases it is just and necessary that recording of complaint and submission of FIR to the 12 jurisdictional Court before embarking upon the usual procedure of raid is mandatory. If this type of investigation by surprise raid in a trap case is permitted, it would demoralize the public administration and there is likelihood of misuse of powers of investigation by the Investigating Officer. Moreover, the procedure of investigation is prescribed in Chapter 12 of Cr.P.C. from Sections 154 to 176. But the investigation in this case is made in violation of the procedure prescribed under Chapter 12 of Cr.P.C. Under such circumstances, continuation of prosecution will not serve any useful purpose. As such, learned Sessions Judge is right in discharging the accused for the above reasons. I do not find any good ground to call for my interference in the impugned order. Accordingly, I pass the following order.
Both the revision petitions in Crl.R.P.No.965/2005 and Crl.R.P.No.964/2005 are hereby dismissed.
Sd/-
JUDGE