Karnataka High Court
Sri. V. P. Rajanna vs The State Of Karnataka on 19 July, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.76/2017
Between:
1. Sri V P Rajanna
S/o Sri Puttaswamaiah,
Aged about 45 years,
R/at Amruthur,
Kunigal Taluk,
Tumkur District - 572 111
2. Sri B A Sridhar,
S/o Sri Anjinappa,
Aged about 43 years,
R/at No.1882, 2nd Stage,
Rajajinagar,
Bangalore - 560 010
3. Sri K N Surendra,
S/o Sri Nagu,
Aged about 40 years,
R/at No.16, Prakruthi,
Alidas Badavane,
Vijayanagar,
Bangalore - 560 040 ...Petitioners
(By Sri Murthy Dayanand Naik, Advocate)
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And:
The State of Karnataka
Represented by
Deputy Superintendent of Police,
Karnataka Lokayukta,
City Division,
Bengaluru - 560 001 ...Respondent
(By Sri Venkatesh S Arabatti, Spl. P.P)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to (i) Quash the charge sheet in
Crime No.1/2009 dated 31.01.2009 at Annexure - C
against petitioners filed for the offences under Sections
13(1)(e) read with Section 13(2) of Prevention of
Corruption Act, 1988 and Section 109 of IPC in
Spl.C.C.No.16/2009 on the file of 23rd Addl. City Civil and
S.J., and Spl. Judge for Prevention of Corruption Act,
Bengaluru City (CCH-24) which is now pending as
Spl.C.C.No.16/2009 on the file of 76th Addl. City Civil and
S.J., and Spl. Judge, Mayo Hall, Bengaluru City.
(ii) Quash the entire proceedings in Spl.C.C.No.16/2009 on
the file of 23rd Addl. City Civil and S.J., and Spl. Judge for
Prevention of Corruption Act, Bengaluru City (CCH-24)
which is now pending as Spl.C.C.No.16/2009 on the file of
76th Addl. City Civil and S.J., and Spl. Judge, Mayo Hall,
Bengaluru City vide Annexure - D as against the
petitioners and etc.,
This Criminal petition coming on for Orders, this day,
the court made the following:
ORDER
Petitioners have sought to quash the charge sheet in Crime No.1/2009 (Annexure-C) and the entire proceedings pending on the file of 23rd Additional City 3 Civil and Sessions Judge and Special Judge for prevention of Corruption Act, 1988 Bengaluru City [CCH- 24] in Special C.C.No.16/2009.
2. During the pendency of this petition, the Special Judge has rejected the application filed by accused No.1 seeking discharge. Hence, the learned counsel for petitioners has sought leave to challenge the order framing charge dated 02.07.2008 in the above Spl.C.C.No.16/2009.
3. Heard learned counsel for the petitioners and learned standing counsel for the respondent and perused the records.
4. Charge sheet has been filed against four accused persons under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988 and Section 109 of IPC. The specific charge against accused No.1 is that during his tenure as a public 4 servant being the Chief General Manager of Mysore Minerals, he amassed wealth disproportionate to his known source of income amounting to Rs.59,54,339/-. The petitioners herein namely, accused Nos.2 to 4 are arrayed as co-accused on the allegations that they abetted the commission of offence by facilitating accused No.1 to register various sale deeds in their benami names. Petitioners are sought to be prosecuted with the aid of Section 109 of IPC.
5. The principal contention urged by learned counsel for the petitioners is that the proceedings initiated against the petitioners/accused Nos.2 to 4 suffer from following illegalities:
(i) Initially the learned Special Judge took cognizance only for the offence under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988. Special Judge did not take cognizance of the offence alleged against the present petitioners under 5 Section 109 of IPC, at the first instance. It is only when an application was moved by the respondent, the learned Special Judge took cognizance of the offence under Section 109 of IPC and issued summons to the petitioners, after a delay of 18 months. Placing reliance on the proposition of law expounded in :
a) State by A. Mahadeva v/s Papireddy
reported in ILR 1988 Karnataka 666;
b) Dharam Pal and Others v/s State of
Haryana and another reported in (2014)3 SCC 306;
c) Sunil Bharti Mittal v/s Central Bureau of Investigation reported in (2015)4 SCC 609 and
d) Sarah Mathew v/s Institute of Cardio Vascular Diseases by its Director Dr. K.M.Cherian and others reported in (2014)2 SCC 62, learned counsel submits that cognizance of an offence can be taken only once. In the instant case, cognizance having been taken for the second time, the proceedings are vitiated.6
(ii) Secondly, it is contended that accused Nos.2 and 3 are cited as prosecution witnesses as CW.52 and CW.50 respectively, contrary to Section 173(2) and Section 315 of Cr.P.C. The prosecution is not entitled to compel the accused to be a witness to the prosecution.
Therefore, on this score also the proceedings are liable to be quashed.
(iii) Thirdly, it is alleged that in respect of the same offence, another FIR has been registered against all the petitioners as well as accused No.1 in Vidhana Soudha Police Station in Crime No.4/2009 under Sections 424, 468 and 120B of IPC. After investigation, 'B' report was filed in the said case and the same has reached finality. Therefore, the prosecution of the petitioners for the very same offence in the instant trial is opposed to the principles of law and hence, on this ground also the prosecution of the petitioners is liable to quashed.
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6. Meeting the above arguments, learned Special Public Prosecutor for the respondent would submit that initially the Special Judge omitted to take cognizance of the offence under Section 109 of IPC. When the said error was brought to the notice of the Special Judge, cognizance was taken on 05.08.2010, and only thereafter the summons were issued to the petitioners, therefore, there is no illegality whatsoever in the matter of taking cognizance of the offence under Section 109 of IPC. Further, the learned counsel submitted that no prejudice has been caused to the accused on account of the delay in taking cognizance of the offence as contended by the petitioners. Even otherwise on such a ground, the proceedings cannot be quashed. Insofar as citing accused Nos.2 and 3 as CW.52 and CW.50, learned counsel has pointed out that on noticing the said lapse, explanation of Investigating Officer was called for and no final decision has been taken by the Special Judge in this 8 regard. Therefore, the said aspect cannot be a reason to seek quashment of the proceedings.
7. Considered the submissions and perused the records.
8. Regarding the first contention, though elaborate argument is advanced by the learned counsel for petitioners relying on various authorities which deal with the implications of cognizance, but in the instant case, the factual situation reflected in the order sheet indicate that at the earliest instance, cognizance was taken only in respect of the offence under Section 13(1)(e) and summons was issued only to accused No.1. It is only when the attention of Court was drawn to the said lapse, the learned Special Judge has passed an order dated 05.08.2010, which reads as follows;
"Learned Special Public Prosecutor has filed an application under Section 190 of Cr.P.C., contending that the Investigating Officer has 9 filed the charge sheet against the four accused persons for the offence punishable under Sections 13(1)(e) read with Section 13(2) of P.C. Act and Section 109 of IPC read with Section 13(1)(e) of P.C. Act. In the charge sheet, the name of the accused No.1 has been shown in Column No.4 and the name of other 3 accused persons are shown in Column No.1. However, inadvertently, this Court has taken cognizance only against accused No.1 and cognizance has not been taken as against accused Nos.2 to 4. Hence he prays to take cognizance against accused Nos.2 to 4 and issue process of their appearance.
I have perused the application and records.
This Court earlier has taken cognizance only against the accused No.1. There is sufficient material to proceed against the accused Nos.2 to 4.
Hence cognizance taken against the accused Nos.2 to 4 for the offences punishable under Sections 13(1)(e) read with Seciton 13(2) of the P.C. Act and Section 109 of IPC read with Section 13(1)(e) of P.C. Act.10 Issue summons to accused Nos. 2 to 4
returnable by 21.08.2010. ''
9. It is evident that cognizance of offence under Section 109 of IPC was taken for the first time on 05.08.2010. Therefore, the argument of learned counsel for the petitioners that the Sessions Court has taken cognizance of the said offence twice being contrary to the facts on record cannot be accepted. Further, the petitioners having been called upon to face trial only after taking cognizance of the said offence, there is no illegality whatsoever in the action taken by the Special Judge. This contention therefore, is also rejected.
10. Regarding contention No.2, no doubt the records reflect that accused Nos.2 and 3 are also cited as prosecution witnesses. But mere citing of the witnesses does not mean that the prosecution has decided to examine those witnesses. It is always open for the petitioner to give up examination of any of the 11 witnesses cited in the charge sheet. Though legally the prosecution cannot compel the accused to be a witness against himself, yet the respondent having taking necessary action to seek deletion of CW.50 and CW.52, in my opinion, this lapse cannot furnish a ground to the petitioners to seek quashment of proceedings. Learned Special Public Prosecutor appearing for the respondent would submit that the respondent would take necessary steps to delete CW.50 and CW.52 from the array of the witnesses cited in the charge sheet.
11. Regarding the third contention urged by learned counsel for the petitioners, suffice it to note that as per the say of the petitioners themselves, FIR in Crime No.04/2009 of Vidhana Soudha Police Station was filed for the offence under Sections 424, 468 and 120B of IPC. Whereas, in the instant case, the charge sheet is laid alleging commission of offences under Sections 13(1)(e) read with Section 13(2) and Section 109 of 12 IPC. These facts do not attract the mischief of Section 300 of Cr.P.C. It is also not the case of the petitioners that they have been tried and convicted for similar offences by a competent court. Therefore, viewed from any angle, I do not find any reason to quash the proceedings initiated against the petitioners. Petition is bereft of merits.
Accordingly, the Criminal Petition is dismissed.
SD/-
JUDGE AV/ssb