Karnataka High Court
Sri. M. C. Vidyashankar vs The State Of Karnataka on 25 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2284, 2021 (1) AKR 313
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.236 OF 2019
BETWEEN:
SRI. M. C. VIDYASHANKAR
S/O. M.P. RAMA BHAT
AGED ABOUT 68 YEARS
RETIRED GOVT. OFFICIAL
R/AT NEAR SHANKAR MANDIR
MALEBENNUR
HARIHARA
DAVANAGERE DISTRICT-572101.
...PETITIONER
(BY SRI: C.H. JADHAV, SR. ADVOCATE FOR
SRI: CHETHAN JADHAV, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY LOKAYUKTA POLICE
BANGALORE
REP BY STATE PUBLIC PROSECUTOR
BENGALURU-560001
2. SRI. MANIKANTA SARKAR
S/O. KARUNAKARAN
AGED ABOUT 33 YEARS
OCC: BUSINESS & SOCIAL WORKER
2
PRESIDENT, DAVANGERE DISTRICT
SHREERAMASENA DIVISION,
DAVANAGERE-572101.
...RESPONDENTS
(BY SRI: ASHWIN S HALADY, ADVOCATE FOR R1;
R-2 SERVED-UNREPRESENTED)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE CRIMINAL PROCEEDINGS AGAINST
THE PETITIONER IN INITIAL PROCEEDINGS IN SPECIAL CASE
NO.1/2018 ON THE FILE OF DISTRICT AND SESSIONS JUDGE
AND SPECIAL COURT, DAVANGERE THEREBY TAKING
COGNIZANCE AGAINST THE PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTION 189 OF IPC, 1860 AND SECTIONS
8,13(1)(c) R/W SECTION 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.10.2020 AND COMING ON FOR
PRONOUNCMENT OF ORDER, THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioner against whom a charge sheet is laid by respondent No.1 Lokayukta police in Cr.No.31/2013 has presented this petition under section 482 Cr.P.C. seeking to quash the initiation of the proceedings in Spl.Case(Lok) No.1/2018 and also to quash the order taking cognizance against the petitioner for the offences punishable under sections 198 IPC and sections 8, 13(1) (c) r/w 13(2) of Prevention of Corruption Act, 1988.
2. The brief facts leading to the presentation of the above petition are as follows:-
Respondent No.2 filed a private complaint before the Prl. District & Sessions Judge, Davanagere seeking prosecution of 19 accused persons for the alleged offences punishable under sections 198 IPC and sections 8, 13(1) (c) r/w 13(2) of P.C. Act on the allegations that the Davanagere Harihara Urban Development Authority had acquired 200 acres of land near Shyabannuru village and developed a layout by name J.H. Patel 4 layout. Applications were invited for allotment of sites. Even though the petitioner was owning a land and a house and belonged to Brahmin community, he submitted an application under 'reserved category' and made a false declaration that he was not owning a house or site in his name. It was further alleged in the complaint that the petitioner being a faithful worker of BJP in order to bestow political advantage on him, accused Nos.2 to 6 allotted a site to the petitioner though was ineligible for the grant. It was also alleged that apart from the petitioner, sites were allotted to other ineligible persons contrary to the rules and regulations of allotment by the Davanagere Harihara Urban Development Authority and its members, by abusing official position. Further, it is contended that even if the entire allegations in the complaint are accepted on their face value, they do not constitute the ingredients of the alleged offences; the complainant is a habitual complainant who has filed more than 100 such complaints against innocent people for harassing, humiliation and blackmailing by adopting arm twisting tactics; the complaint having not been accompanied with the sanction order, as laid down by the Apex Court in Anil Kumar and Others 5 v. M.K. Aiyappa and Another, (2013) 10 SCC 705, the learned magistrate has committed a serious illegality in directing investigation under section 156(3) Cr.P.C. The order of reference made under section 156(3) suffers from lack of application of mind. This order is contrary to the principles laid down by the Hon'ble Apex Court in Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors, (2015) 6 SCC 287. It is further contended that the petitioner was not possessing any site within his native State and therefore a fond hope of being allotted a site near his home town, he had applied for allotment of site to the Davanagere Harihara Urban Development Authority and after verifying the bonafides and eligibility, the Authority allotted a site; the allegations in the complaint that the petitioner belongs to a Brahmin community and a supporter of the Bharatiya Janatha Party and by misusing the powers of the Davanagere Harihara Urban Development Authority, the said site has been allotted to him are false and baseless and are fabricated for the purpose of filing false case.6
I have heard learned Senior counsel Sri. C.H. Jadhav, appearing for Sri. Chetan Jadhav, learned counsel for petitioner and the learned counsel for respondent No.1.
3. Placing reliance on the Karnataka Urban Development Authorities (Allotment of Sites in lieu of Compensation for Land Acquired) (Amendment) Rules, 2015 and the decision of the Hon'ble Supreme Court in Kogundi Dyamanna v. Manikanta Sarkar and Another, 2017 SCC Online Kar 4285, learned Senior counsel appearing for the petitioner has emphatically submitted that the allotment made in favour of the petitioner does not violate any of the provisions of the above rules. No material was available on record to show that the petitioner was in possession of any land other than the site allotted to him as on the date of the submission of the charge sheet. If a person acquires property by gift inheritance, the same does not disentitle him to acquire a site and without considering any of these aspects and without satisfying itself about the requirement of prior sanction, the learned Special Judge has taken cognizance of the alleged offences and issued summons to the 7 petitioner which is patently illegal and amounts to abuse of process of Court and thus prayed for quashing the entire proceedings against the petitioner.
4. Learned counsel for respondent No.1 however argued in support of the impugned action contending that the allegations made in the complaint as well as material collected by the investigating agency clearly make out the offences alleged against the petitioner and therefore there is no scope to quash the proceedings on the contentions set up by the petitioner.
I have bestowed my careful thought to the submissions made at the Bar and have scrutunised the material on record.
5. At the outset, it has to be noted that the jurisdiction of the High Court to interfere with the criminal offence at the initial stage is concerned, the Hon'ble Supreme Court in MADHAVRAO JIWAJIRAO SCINDIA & Others vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others, (1988) 1 SCC 692, has laid down that:
"The legal position is well-settled that when a prosecution at the initial stage is asked to be 8 quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
6. In STATE OF HARYANA vs. BHAJAN LAL & Others (1992) Supp. 1 SCC 335, the Hon'ble Supreme Court has enumerated the categories of cases wherein the power under Articles 226 of the Constitution or under Section 482 of code could be exercised as under;
" In the backdrop of interpretation of various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this court in a series of decisions 9 relating to the exercise of the extra-ordinary power under Article 226 or the inherent of the Constitution of India or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code 10 except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the 11 concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
7. Criminal courts no doubt are invested with inherent powers to make orders, as may be necessary, for the ends of justice, but, as held by the Hon'ble Supreme Court in JANATA DAL vs. H.S. CHOWDHARY & Ors. (1992) 4 SCC 305, "Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."
12
8. Though learned counsel for the petitioner has vehemently submitted that the material on record does not make out the ingredients of the offences charged against the petitioner, yet, a reading of the complaint lodged by the second respondent and the material collected by the first respondent in the course of investigation, in my view, clearly make out the ingredients of the above offences. At the stage of taking cognizance of the offences, learned Magistrate or the Court is not required to ascertain the veracity or the correctness of the materials. If the material produced before the court prima-facie make out the offences alleged against the accused, the court is entitled to take cognizance of the offences and proceed in the matter. At the stage of issuing summons, the court is not required to analyse and sift evidence or to examine the merit of the case. Therefore, the contention of the petitioner that the impugned order has been passed mechanically without application of mind cannot be accepted.
9. Insofar as requirement of prior sanction is concerned, the facts of the case clearly disclose that as on the date of taking 13 cognizance of the offences against the petitioner, the petitioner ceased to be a public servant. Moreover, there are no allegations in the charge sheet insofar as petitioner is concerned that the alleged transaction was entered into by him by abuse of his office as a public servant. The allegations of abuse of office are directed only against the President and committee members of Davanagere Harihara Urban Development Authority. The allegations against the present petitioner is that he obtained the allotment by making false declarations and by taking undue advantage of his association with R.S.S. and B.J.P. Under the said circumstances, no sanction is necessary for the prosecution of the petitioner. Hence, the contention of learned Senior Counsel for the petitioner that initiation of action against the petitioner for want of prior sanction is bad in law, is liable to be rejected.
10. Learned Senior Counsel for the petitioner has referred to the following decisions:
1. Kogundi Dyamanna v. Manikanta Sarkar and Anr., ILR 2018 KAR 2067.14
2. Sri. Mallikarjunaiah B.K. v. The Mysuru Urban Development Authority & Ors in W.P.No.22649/2018 c/w W.P.No.31341/2018.
3. Priyanka Srivastava and Another v. State of Uttar Pradesh and Others, (2015) 6 SCC 287.
4. Anil Kumar and Others v. M.K. Aiyappa and Another, (2013) 10 SCC 705.
5. Chandigarh Housing Board v. Major-General Devinder Singh (Retd.) and Anr., (2007) 9 SCC 67 Decisions at Sl.No.1 to 4 deal with the Section 156(3) Cr.P.C. The principles laid down in these decisions may not assume any significance at this stage as the allegations made in the complaint and the evidence collected in proof thereof prima facie disclose the commission of criminal offence necessitating the reference of the complaint for investigation under Section 156(3) Cr.P.C. The decision in Chandigarh Housing Board v.
Major-General Devinder Singh (Retd.) and Another, (2007) 9 SCC 67 is cited to canvass the point that there is no bar under the Act if applicant owns site by other modes and acquisition of any property through any other source or through any other 15 agency is not prohibited. In order to apply this principle, the contested facts may have to be analysed and adjudicated which exercise is beyond the jurisdiction of this Court under Section 482 Cr.P.C.
11. As the allegations made in the charge sheet and the material produced in support thereof prima-facie disclose the ingredients of offences alleged against the petitioner, I do not find any justifiable ground to quash the proceedings on the contentions urged in the petition.
For the said reasons, the petition is liable to be dismissed and is accordingly dismissed.
Sd/-
JUDGE *mn/-