Karnataka High Court
Sri J. Suresh vs The State Of Karnataka on 29 March, 2016
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MARCH 2016
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL REVISION PETITION No.772/2014
Between:
Sri J. Suresh
S/o Late L. Jayappa
Aged about 37 Years
Assistant Director of Town Planning
Resident of Devi Colony
Bidar- 585 401
... Petitioner
(By Sri M.R. Rajagopal, Advocate for
Sri Ravi Basawaraj Patil, Advocate)
And:
The State of Karnataka
By Lokayuktha Police
Bidar- 585 401
Represented by its
Police Inspector
... Respondent
(By Sri S.S. Kumman, Spl. PP for Lokayukta)
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This Criminal Revision Petition is filed under Section
397 r/w Section 401 Cr.P.C., praying to set aside the order
dated 25.08.2014 passed on application filed under Section
227 of Criminal Procedure Code 1973, in Spl.
C.C.No.39/2013 on the file of Principal and Sessions Court,
Bidar, (Annexure-A to this petition) and consequently,
discharge the petitioner from the said case.
This petition coming on for Admission this day, the
Court made the following:
ORDER
This revision petition is directed against the order dated 25.08.2014 passed by the learned Principal District and Sessions Court, Bidar, in Spl.C.C.No.39/2013 on the petition filed under Section 227 of Cr.P.C., by the accused.
2. Karnataka Lokayukta Police, Bidar, have laid charge sheet against the accused (petitioner herein) for the offences punishable under Sections 7, 13(1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988, r/w Section 34 of IPC.
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3. The brief factual matrix that emanate from the charge sheet papers are that,-
Petitioner was working as Assistant Director of Town Planning, Group-A Officer of the Government has demanded a sum of Rs.30,000/- for the purpose of technical clearance with reference to the property belonging to the complainant by name Praveen S/o Sangappa. It appears, on 14.06.2012 the said demand was made by the accused and complainant had been to the Lokayukta Police on 15.06.2012 and intimated the same to the Lokayukta Police. In turn, the Lokayukta Police have provided a voice tape-recorder to the complainant to record the conversation between the accused and the complainant and accordingly, the complainant has done the same and thereafter, the lokayukta police have registered a case and laid a trap. As the trap was successful, after thorough investigation, the police have laid charge sheet against the petitioner 4 and another. When the matter reached the stage of hearing before charge, it appears on 18.07.2014, the learned Sessions Judge has recorded that "accused Nos.1 and 2 present. Heard satisfactorily. There are sufficient material to frame charges".
On 25.08.2014, it appears, the accused has filed detailed petition under Section 227 of Cr.P.C. taking out various grounds for his discharge. After hearing both the parties, the learned Sessions Judge has passed the impugned order.
4. I have heard the arguments of Sri M.R.Rajagopal, learned counsel appearing for petitioner and Sri S.S.Kumman, learned Special Public Prosecutor appearing for respondent-Lokayukta. I have carefully perused the order impugned under the revision petition.
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5. The first and foremost limb of the arguments of Sri M.R.Rajagopal, learned counsel is that, though various grounds have been urged in the petition under Section 227 of Cr.P.C., the learned Sessions Judge has not even touched any point, considered them and given any finding to that effect. Secondly, the learned counsel contended that there are various facets in this case which disclose that pure questions of law are involved that ought to have been considered by the learned Sessions Judge. He raised three important aspects in order to get the petitioner discharged from the allegations made against him which are narrated below:
(i) The learned counsel has contended that registration of the case after partly investigating the matter is bad in law. He further submits that when the complainant has informed the police about the commission of cognizable offence by the accused, on 15/6/2012, it is the bounden duty of the investigating agency to register 6 the first information report first and thereafter, should have proceeded to investigate the matter. In order to substantiate this aspect, the learned counsel has relied on a case reported in (2014) 2 SCC 1 in the case of Lalita Kumari vs. Government of Uttar Pradesh and others, wherein the Hon'ble Apex Court has laid down certain guidelines as to how and in what manner the police officers can investigate the matter and conduct preliminary enquiry and under what circumstances, preliminary enquiry is noted and when the police officer must register a case and proceed with the investigation.
(ii) Learned counsel further argued before me on the second limb that the sanction order produced before the Court said to have been issued by the Government is not supported by any other materials on record to establish that actually Government has taken any decision and thereafter, the Government has directed Under Secretary to communicate the said order to the accused. He further 7 submits no proceedings of the Government have been produced before the Court in order to establish this particular aspect.
Plain reading of the sanction order produced before the Court does not disclose that the entire materials collected by the investigating agency has been sent to the Government and the competent authority like the cabinet, has taken any decision to prosecute the accused and thereafter, the said order of the Government was communicated through the Under Secretary to the Government. In this regard, learned counsel has also relied upon a judgment of this Court in Criminal Appeal No.2573/2013 rendered on 16.09.2014, wherein this Court has indetailly discussed as to how the Government can issue sanction order and whether sanction order issued by the Under Secretary is valid or not. However, in the said case, after thorough trial being conducted by the Trial Court, in the appeal said observation has been made by the learned Judge.
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(iii) Third point that has been raised by the learned counsel is that even on facts the prosecution has not shown to the Court by cogent and convincing material that any work was pending with the accused/petitioner as on the date of alleged demand by the accused as alleged by the complainant and that has also not been answered by the learned Sessions Judge. For all these reasons, he prays this Court to set aside the order passed by the learned Sessions Judge and discharge the accused here itself.
6. Sri S.S.Kumman, learned Spl.PP for the respondent-Lokayuktha has submitted that at the time of framing of the charges the Court need not go in detail with regard to questions raised in this case. In this case where the Court can take the decision on all the points raised after recording of the evidence. Further he submits that the trial Court has considered the factual matrix of this case and overall reading of the charge 9 sheet, it has come to the conclusion that there is prima facie material to proceed against accused. Therefore such orders does not call for any interference, as accused would get sufficient opportunity to cross examine the witnesses to be produced by the prosecution and Court can answer the questions raised even at the time of passing judgment. Hence, he prays to dismiss the petition.
7. I have carefully perused the orders passed by the learned Sessions Judge. The learned Sessions Judge after culling out the brief factual matrix of the case has only observed that there is some material to show that accused No.1 has demanded the money and accused No.2 also facilitated accused No.1 in demanding and receiving of the money. Therefore on such materials he held that accused Nos.1 and 2 are equally responsible in committing the crime. Except such observation the entire order does not disclose that 10 he has applied his mind on the grounds urged in the petition U/sec. 227 of Cr.P.C. and he has not given any of his anxious consideration so far as the legal points raised and he never taken pains to answer those points in question.
8. A copy of the petition filed under Section 227 of Cr.P.C. has placed before this Court. On careful perusal of the same, accused No.1 has raised so many aspects in the petition including legal points and factual points. At paragraph 8 it is categorically submitted that the complainant has approached the Lokayuktha police on 15.06.2012, but on that day no complaint was registered the complainant has been given with voice recorder to record the conversation of the complainant with the accused, that itself amounts to serious lapse on the part of the investigative Officer. Therefore, on that ground he is entitled to be discharged. At paragraph 10 a ground has been taken that, the 11 sanction order issued by the Government itself is invalid not only for want of competency but also on facts. That point also appears to have not been considered by the learned Sessions Judge. Thirdly, at paragraphs 4 and 9 of the petition it disclose that on facts the petitioner has raised the question that there was absolutely no work pending with him on the alleged date of demand of bride. Therefore there was no occasion for demand of any bribe from the complainant as such a false complaint has been laid against the petitioner.
9. On perusal of the above said petition U/sec. 227 of Cr.P.C. and the orders impugned under the revision petition as rightly contended by the learned counsel, there is absolutely no application of mind by the learned Sessions Judge to the contents of the petition filed under Section 227 of Cr.P.C. The filing of the petition under Section 227 cannot be said to be idle formality which Court can take in a very casual manner 12 without discussing any grounds raised and disposing of such application. It is the fundamental duty cast upon the Court under section 227 of Cr.P.C. as the provision itself is self explanatory as to what the judge has to do when a petition under section 227 of Cr.P.C. is filed and even in the absence of such application it is statutory duty of the Court to give its finding so far as the legal questions raised. Section 227 reads thus:
227.Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
10. On reading of the said provision it cast a burden on the Court to consider the entire records of the case and the documents produced therewith and 13 after hearing submissions of the accused and the prosecution, the Judge has to consider whether there is any sufficient ground for proceeding against the accused, otherwise he shall discharge the accused recording his reasons for doing so. This provision gives out three segments, one is Court has to consider the entire records submitted by the police and on the basis of the such materials the Court has to provide such opportunity to both the parties to make submissions and thereafter he has to consider those materials and the submissions and thereafter giving his reasons either he can dismiss the application or he can discharge the accused if no sufficient grounds are available on record.
Therefore, under the revisional jurisdiction it may not be proper on the part of the Court to enter into consider the legal and factual grounds raised when particularly those have not been looked into and answered by the learned Sessions Judge. I feel it is just and necessary to remit the matter to learned Sessions Judge to 14 re-consider the said petition filed under section 227 Cr.P.C. afresh in the light of the observations made by this Court above.
11. It is also made clear that so far as sanction point is concerned the Apex Court in a decision reported in AIR 1979 SC 677 between Mohd. Iqbal Ahmed vs. State of Andhra Pradesh has observed that "any dispute with regard to the sanction point, can be thrashed out by two ways i.e. by producing original sanction order which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Therefore it is open for the prosecution and the Court to any witness in this regard for a limited purpose to ascertain whether the sanction order was issued by the competent authority and whether he has applied his mind to the facts of the case and thereafter satisfying 15 itself that it is a fit case to accord sanction. Thereafter the Court can give finding with reference to the validity of the sanction order is concerned.
12. Sri M.R.Rajgopal learned counsel also submits that till the Court considers the petition under section 227 Cr.P.C. the accused presence may be dispensed with. However, the learned counsel has directed to make necessary application before the Trial Court for exemption of the accused till the petition under section 227 Cr.P.C. is disposed of and the learned Sessions Judge has to consider the said application in accordance with law. If any charges are already been framed the same are here set aside and the learned Sessions Judge has to take fresh decision after considering the petition under section 227 Cr.P.C.
13. In the light of the above said reasons in my opinion the matter deserves to be remitted to the Trial Court restoring the petition under section 227 Cr.P.C. to 16 be considered afresh after following the statutory requirements under section 227 Cr.P.C. and also in the light of the observations made in the order.
Sd/-
JUDGE NB*/sdu