Karnataka High Court
Prabhakar S/O Gangappa Shivappanavar vs State Of Karnataka By on 21 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 21st day of August 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Petition No.100994/2017
Between:
Prabhakar,
S/o Gangappa Shivappanavar,
Aged about 56 Years,
Occ: AEE Sub-Division,
Ranebennur, R/o: Ranebennur,
District: Haveri. ...Petitioner
(By Sri. Aravind D.Kulkarni, Advocate)
And
State of Karnataka,
By Lokayukata Police Station,
Haveri,
Rep: By The Public Prosecutor,
High Court of Karnataka,
Dharwad. ...Respondent
(By Smt Niramala S. Sutagattimath, Special Public
Prosecutor)
This Criminal Petition is filed under Section 482 of
Cr.P.C., seeking to allow this petition and to quash the
charge sheet filed vide Annexure-C and entire
proceedings in Spl. SVC No.1 of 2014, registered for the
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offences punishable under Sections 7, 13(1)(d) read with
13(2) of the Prevention of Corruption Act, pending on
the file of II Addl. District and Sessions Judge and Spl.
Judge, Haveri (sitting at Ranebennur).
This Criminal Petition coming on for Admission
this day, the Court, made the following:
ORDER
This is a petition filed by the petitioner/accused under Section 482 of the Code of Criminal Procedure praying the Court to allow the petition and to quash the charge-sheet filed, vide Annexure-C, and the entire proceedings in Spl. SVC No.1/2014 registered for the offences punishable under Sections 7, 13(1)(d) of the Prevention of Corruption Act, pending on the file of the II Additional District and Sessions Judge and Special Judge, Haveri, sitting at Ranebennur.
2. Brief facts of the prosecution case, as per the complaint averments, are that one Mallayya Virupaxayya Kitturmath filed a complaint on 24.04.2013 before the Police Inspector, Karnataka Lokayukta, Haveri, stating that he is running a Bore 3 Well Agency under the name and style of M/s Vinayak Bore Well Agency and he digs bore wells on the request of government and private persons. It is his further contention that as entrusted by the Ranebennur Panchayatraj Engineering Sub-Division, to dig 60 borewells in the villages coming under the Ranebennur taluk, the complainant dug 60 borewells and the present petitioner, who was the Assistant Executive Engineer working in the said Panchayatraj Engineering Sub-Division, insisted the complainant to pay Rs.2,000/- per bore well and totally Rs.1,20,000/- for preparing the bills. The further contention of the complainant is that he paid Rs.74,000/- to the said Assistant Executive Engineer and in that connection, a bill was prepared only in respect of 30 bore wells and the remaining bill in respect of 30 bore wells he has to pay remaining amount of Rs.46,000/- as bribe amount. Further, the contention of the complainant is that on 20.04.2012, in the evening, he went to the office of the 4 Assistant Executive Engineer and when he asked for the bills in respect of the remaining 30 bore wells, the petitioner insisted for the payment of the remaining bribe amount of Rs.46,000/-. As the complainant was not willing to pay the bribe amount to get the bills passed, on 22.04.2013, in the morning at 10.00 a.m., he went to the Karnataka Lokayukta Police at Haveri, and met the Inspector and narrated what had happened. In order to get confirmation of the demand for the bribe amount, Inspector gave a voice recorder to the complainant. After the complainant was instructed by the Inspector as to how to switch on the voice recorder, and to go and talk to the accused, the complainant, on the same day at about 11.30 a.m. went to the office of the A.E.E. i.e., the petitioner. But, the petitioner was not in his office and after some time, the petitioner himself called the complainant over his mobile phone and asked him to come near Rajarajeshwari College. Accordingly, the complainant 5 went to the said place and it was 12.15 p.m. and before meeting the petitioner, the complainant switched on the voice recorder. When the complainant met the petitioner, he enquired about the bore wells for which the complainant told that up till that time he had given Rs.74,000/- and he told that remaining bribe amount of Rs.46,000/- he has to pay, but he will pay only Rs.40,000/- for which the petitioner told whatever the amount he (complainant) gives, he would receive the same, but he has to calculate at the rate of Rs.2,000/- per bore well and asked him to pay the same. The petitioner also told him that whatever the amount is paid, the same is to be deducted and the petitioner insisted for the bribe amount. The said conversation is recorded in the voice recorder. As the complainant was having the work in his native place, he went there and therefore, it was not possible for the complainant to go to the office of the Lokayukta Police on the same day. Therefore, he went to the Lokayukta Police on 6 24.04.2013 at about 1.30 p.m. and handed over the voice recorder. After hearing the conversation recorded in the voice recorder, the Inspector was confirmed about the demand made by the petitioner and asked the complainant to give the written complaint. But, as the complainant was attacked by paralysis, it was not possible for him to write the complaint, but he told that the petitioner demanded Rs.40,000/- bribe amount and accordingly action is to be taken against him and a police constable by name P.R.Bhavikatti, who was in the Lokayukta Police Station prepared a complaint through computer and accordingly, it was given to the Inspector and he has brought Rs.40,000/- which is demanded by the petitioner. It is also the case of the prosecution that an entrustment mahazar was prepared and thereafter it was decided to go to the office of the accused person. Accordingly, the police inspector instructed the complainant and the witness to go to the office of the accused and if the accused demanded the bribe 7 amount, then only the complainant has to give the intended currency notes to the petitioners and accordingly, the entire team and the complainant was also instructed to give pre-arranged signal by coming out and to give pre-arranged signal by wiping his face. It is also the prosecution case that after some time, the complainant as well as the panch witnesses came out of the office of the accused and gave the pre-arranged signal, then the Inspector another panch and the staff went inside the office of the accused and caught hold him and the hand wash of his both hands were taken in two separate bowls containing sodium carbonate solution which turned into pink colour and it was secured in two separate bottles. So also, the hand wash of the pant pocket of the petitioner was also obtained which also turned into pink colour. Then, when the petitioner was asked to give his explanation, he gave is explanation that one Chandrappa gave some amount to him as a hand loan and he had kept the same in his 8 pant pocket and when he was coming out, in the meanwhile, the Lokayukta Police came and caught hold of him and seized the said amount and that he has not demanded any bribe amount from the complainant. After completing investigation, a charge-sheet came to be filed as against the present petitioner for the said offences.
3. The petitioner/accused filed an application before the Special Court under Section 239 read with Section 227 of Cr.P.C. seeking his discharge from the proceedings. The same was considered by the learned trial Judge and he passed the order dated 05.07.2016 rejecting the application holding that there is a prima facie case to proceed as against the petitioner/accused. Thereafter, the petitioner has filed the present petition. In para No.7 of the petition, though it is contended and narrated by the petitioner about the filing of the application under Section 239 read with Section 227 of the Code of Criminal Procedure, and its dismissal by the 9 Special Judge, but the averments mentioned in para No.8 of the petition goes to show that only the charge- sheet and order taking cognizance of the offences have been challenged seeking quashing of the entire proceedings in the said special case.
4. Heard the arguments of the learned counsel for the petitioner/accused and also the learned Special Public Prosecutor appearing for the respondent- Lokayukta.
5. Learned counsel for the petitioner is challenging the proceedings on the ground that firstly looking to the complaint averments, it goes to show that about a year ago i.e., in the year 2012, the complainant approached the petitioner and, after a lapse of one year, a complaint has been filed. It is further contention that looking to the sanction order passed in this case, learned counsel drew the attention of this Court that the sanction order is signed on 13.02.2014, but whereas there is a mention 10 that the order is signed on 11.03.2014. Hence, the learned counsel submitted that on the basis of this it can be said that there is no application of mind by the sanctioning authority and that he has just put up his signature to the sanctioning order prepared by the subordinates.
It is also his contention that the authority, who issued the sanctioning order, is not the sanctioning authority. For this, the learned counsel for the petitioner drew the attention of this Court to the document at page No.119 of the charge-sheet, which is dated 25.04.2013 and to the column Nos. 13 and 14. Referring to these materials, he made the submission that the Principal Secretary, Rural Development and Panchayat Raj Department, Government of Karnataka, is the competent authority/disciplinary authority. So also, the same authority is having the authority to remove the petitioner from service. Therefore, he made 11 the submission that even on this ground the sanction order is not a valid sanction order.
He also submitted that looking to the Police Inspector giving the voice recorder to the complainant it amounts to collecting evidence and it is not a preliminary enquiry and he submitted that when the complainant told before the Inspector that the petitioner demanded bribe amount for preparing bills in respect of 30 bore wells, it was an information in respect of cognizable offence and, therefore, there was no necessity for the Inspector to give the voice recorder and immediately the police inspector ought to have registered the FIR as provided in Section 154(1) of Cr.P.C. Hence, he submitted that this itself is sufficient to hold that there is collection of evidence which is referred to in the entrustment proceedings.
He also submitted that no other work was pending with the petitioner and therefore, there was no reason for the petitioner to demand the bribe amount. In this 12 connection also, the learned counsel for the petitioner drew the attention of this Court to the documents i.e. the S.B.R. register for the year 2012-13 and referred to the entries at No.691 to 697, 712, 715 and also 716 to
722. Lastly, he made the submission that looking to all these materials placed on record they clearly go to show that a false case has been registered against the present petitioner; that he is not involved in committing the said offence; there is no prima facie case; and that the proceedings initiated against the petitioner is only an abuse of process of the Court. Therefore, counsel prayed that the petition may be allowed and the proceedings initiated are to be quashed. In support of his contention, learned counsel for the petitioner relied upon the following decisions, which are produced along with a memo dated 21.08.2017.
1. Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1.
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2. Sri Girishchandra and Another Vs. The State by Lokayuktha Police, Yadgir, reported in 2013 (5) Kar. L.J. 470.
3. Criminal Petition No.3750/2013 of Karnataka High Court, decided on 11.02.2016 (Sri Lakshmikantha S.G., Vs. She State by Karnataka Lokayuktha Police and Another) reported in 2016(3) Kar. L.J.283
4. State of Telangana Vs. Habib Abdullah Jeelani and Others reported in (2017) 2 SCC 779.
6. Per contra, learned Special Public Prosecutor made the submission that sofar as the date on which the complainant is alleged to have met the petitioner is concerned, the complainant has stated that he approached the petitioner on 20.04.2012, but the year is mentioned as '2012' due to oversight and the said mistake is clarified by the complainant in his further statement and in this connection, the learned Special Public Prosecutor drew the attention of this Court to the further statement of the complainant.
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Regarding the sanction order is concerned, she made the submission that there is a revised sanction order, and she drew the attention of this Court to the said revised sanction order and submitted that the date of passing the order is corrected as 13.02.2014.
She made the submission that giving of the voice recorder is only for the purpose of confirmation to know whether the complainant was right in giving the statement about the demand for the bribe amount by the petitioner. Hence, the learned Special Public Prosecutor submitted that, as per the decisions of the Hon'ble Apex Court, conducting of such preliminary enquiry is permissible and therefore, it does not amount to collection of evidence.
So far as the merits are concerned, she made the submission that if the matter was not pending with the petitioner and the bills in respect of all the 60 bore wells were cleared, then what made the petitioner to receive the bribe amount of Rs.40,000/-, which was recovered 15 from his possession in the presence of panch witnesses during the course of trap proceedings. In this connection, learned Special Public Prosecutor also made the submission that looking to the statement of the present petitioner, he has given the statement that one Chandrappa had given him an amount of Rs.40,000/- by way of handloan, and if that is so, why the sodium carbonate solution turned into pink colour when the hand wash of both the hands of petitioner were taken in the said solution. She also submitted that there is a positive finding of the presence of phenolphthalein powder on the currency notes which is confirmed by the FSL in its report. So also, she made the submission and drew the attention of this Court to the statement of Chandrappa wherein he has stated that he had not at all given the amount to the present petitioner and that the petitioner was making a false statement. Hence, she made the submission that looking to all these materials placed on record, as held by the Special Judge, there is 16 a prima facie case as against the present petitioner and therefore, this is not a case for invoking Section 428 of Cr.P.C. for quashing the proceedings. In support of her contentions, learned Special Public Prosecutor relied upon the following decisions:
1. Judgment of the Hon'ble Supreme Court rendered in Criminal Appeal No.1222 of 2012 (State of Rajasthan Vs. Dr. Rajkumar Agarwal and Another.
2. Satya Narayan Sharma Vs. State of Rajasthan reported in (2001) 8 SCC 607.
3. Order of the High Court of Karnataka rendered in W.P.No.20394/2013, decided on 19.02.2016 (Sri M.R.Hiremath Vs. The State of Karnataka, through the Lokayukta Police and another)
7. I have perused the grounds urged in the petition, entire charge-sheet material. I have considered the oral submissions made by the learned counsel for the petitioner and the learned Special Public Prosecutor and also the decisions relied upon by them in support of their contentions.
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8. Regarding the first contention raised that the complainant met the petitioner on 20.04.2012 is concerned, as rightly submitted by the learned Special Public Prosecutor, the complainant, in his further statement, has mentioned that by oversight the year is mentioned as 2012 and in fact, it is 2013 and requested the police to make it as '2013'.
9. Sofar as the sanction order is concerned, it is no doubt true that, in the sanction order, though it is signed by the Chief Executive Engineer, Zilla Panchayat, Ballari, on 13.02.2014, but in the last line of the said operative portion of the order, it is mentioned that the said order was issued on 11.03.2014. Regarding this, the revised sanction order was produced by prosecution wherein the said date is corrected as 13.02.2014. But, here the contention of the learned counsel for the petitioner is that the Chief Engineer, Zilla Panchayat, Ballari, who issued the sanction order, is not either the disciplinary authority or the authority to remove the 18 petitioner from the service. Therefore, on this ground, the learned counsel for the petitioner has challenged the validity of the said sanction order. In this connection, learned counsel for the petitioner drew the attention of this Court to the document on page No.119 of the charge-sheet. I have perused the said document. Looking to the contents of the said document, it goes to show the particulars as entered in the Service Book of the petitioner/accused. The said documents go to show that the petitioner/accused joined the service as a Junior Engineer and therefore, in column Nos.13 and 14, it is mentioned that the Principal Secretary, Rural Development and Panchayat Raj Department, Karnataka Government Secretariat, is the competent authority. But subsequently, at the relevant point of time, the petitioner/accused was posted to Zilla Panchayat at Haveri to serve as an Assistant Executive Engineer. When the petitioner/accused was so serving, the alleged offences are said to have been committed. If 19 that is taken into consideration, the Chief Executive Officer, Zilla Panchayat, Haveri, is the competent authority to remove the petitioner from service. Therefore, considering the same, it can be said that there is no defect in issuing the sanction order by the said authority. If the petitioner/accused still wants to contend that there is a defect in the sanction order, that is not a ground for closure of the criminal case or quash the criminal case. The prosecution is always at liberty to obtain an appropriate sanction order from the competent authority for the purpose of prosecuting the accused person.
10. Now, coming to the contention of the petitioner herein that there was no such work pending with the petitioner regarding passing of the bills in respect of the remaining 30 bore wells dug by the complainant, the materials go to show that the trap was laid and during the trap mahazar proceedings, hand wash of the petitioner/accused was taken in two separate bowls and 20 the solution in the bowl turned into pink colour and there is a positive finding by the FSL in its report regarding the same. No doubt, in the explanation offered by the petitioner/accused immediately after the trap mahazar proceedings was conducted, the petitioner/accused stated that one Chandrappa had given hand loan of Rs.40,000/-; the said amount was kept by him in the pant pocket; and the same amount was recovered by the Lokayukta Police. If that is so, there was no chance of sodium carbonate solution turning into pink colour when both the hands of the petitioner was washed in the said solution because the currency notes, which was alleged to be given by Chandrappa, were not smeared with phenolphthalein powder. So, on this ground, the statement of the petitioner/accused is falsified. Not only that, the Investigating Officer recorded the statement of said Chandrappa also during investigation and Chandrappa denied that he had given the amount of Rs.40,000/- to 21 the petitioner/accused on that day and there is a false statement given by the petitioner. If this statement of Chandrappa is also looked into, prima facie, it goes to falsify the explanation offered by the petitioner that the said amount was received by him from Chandrappa. These are all the aspects which the learned Sessions Judge has taken into consideration while passing the order and rejecting the application seeking discharge.
11. Apart from that, another contention of the petitioner is that the voice recorder given to the complainant to record the conversation amounts to collection of evidence. But, in this regard, prima facie, this voice recorder was given to the complainant before the registration of the complaint and it is stated in the complaint itself that when the complainant told that the petitioner demanded the bribe amount, to get confirmation of the same, the Inspector, Lokayukta Police, gave voice recorder to the complainant and asked him to go and have the conversation recorded and 22 therefore on the basis of this material, at this stage, it cannot be concluded by this Court that it is a collection of evidence. Even looking to the judgment of the Hon'ble Apex Court in Lalita Kumari's case, their Lordships have observed that there are some cases which require preliminary enquiry, the nature of such cases are family disputes, commercial transactions, medical negligence cases, corruption cases etc. Therefore, at this stage, this Court cannot come to a conclusion on the said contention raised by the petitioner. It is for the petitioner to raise this contention before the concerned Trial Court. Apart from that, looking to the scope and ambit of Section 482 of Cr.P.C., if there is no prima facie case made out by the prosecution, or if the case of the prosecution is totally groundless, then in such circumstances the Court can invoke its jurisdiction under Section 482 for quashing the proceedings. But, in the case on hand, an application was filed by the present petitioner seeking his discharge from the 23 proceedings invoking Section 239 read with Section 227 of Cr.P.C, and it was contested by the prosecution, and thereafter, the learned Special Judge considering the material rejected the application holding that there is a prima facie case in favour of the prosecution. When that is so, this Court under Section 482 of Cr.P.C. cannot sit in an appeal over the order or as the revisional Court, but has to see whether there is a prima facie material or not. Therefore, the decisions relied upon by the learned counsel for the petitioner are not helpful to the petitioner at this stage, as there is a prima facie case. The learned Special Judge has rightly held that there is prima facie case and rejected the application seeking discharge. The said order of the learned Special Judge has become final because, though a mention is made about the said order in one of the grounds, actually what is challenged in this petition is only the charge- sheet material and the order taking cognizance. 24 Therefore, this is not a case for quashing the proceedings. Accordingly, the petition is hereby rejected.
In view of disposal of the petition, I.A. No.1/2017 does not survive for consideration and the same is accordingly disposed of.
The observation made by this Court in the body of the order are only for the purpose of disposal of this criminal petition and the learned Special Judge should not be influenced by such observation during the course of the trial and the learned Special Judge shall consider the case independently and dispose of the same in accordance with law.
Sd/-
JUDGE Kms