Karnataka High Court
Sri Krishna Naik S/O Annappa vs The State Of Karnataka on 22 July, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-D:10235
CRL.P No. 101908 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
CRIMINAL PETITION NO. 101908 OF 2023
BETWEEN:
1. SRI. KRISHNA NAIK,
S/O ANNAPPA, AGE 39 YEARS,
OCC:POLICE INSPECTOR,
R/O HULIKATTE VILLAGE & POST,
DAVANAGERE TALUK AND DISTRICT 577 512.
...PETITIONER
(BY SRI. VENKATESH P DALWAI., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS DEPUTY SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTHA, BELLARY
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
Digitally
signed by HIGH COURT OF KARNATAKA,
KIRAN DHARWAD BENCH, DHARWAD-580 011.
KUMAR R
Location:
HIGH 2. DR.PRAKASH REDDY @
COURT OF
KARNATAKA DR. K.T.PRAKASH REDDY,
S/O NOT KNOWN TO THE PETITIONER,
AGE MAJOR, OCC:DOCTOR,
ADD No.17, GURUSIDDESHWARA NILAYA,
BEHIND K V R S COLLEGE,
ROTTI LAYOUT, PANCHAKSHARI NAGARA,
GADAG-582 101.
...RESPONDENTS
(BY SRI. SANTHOSH.B., MALAGOUDAR, SPL.PP FOR R-1;
SRI.T.HANUMAREDDY., ADVOCATE FOR R-2)
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NC: 2024:KHC-D:10235
CRL.P No. 101908 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C SEEKING TO QUASH ENTIRE PROCEEDINGS ON THE
FILE OF III ADDITIONAL SPL AND DISTRICT AND SESSION
JUDGE, BALLARI (SITTING AT HOSAPETE) IN CRIME
No.01/2020 OF ANTI CORRUPTION BUREAU PS, BALLARI FOR
THE OFFENCES PUNISHABLE UNDER SECTION 7(a), 7(b),
13(1)(c) READ WITH SECTION 13(2) OF THE PREVENTION OF
CORRUPTION ACT 1988, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The facts, as could be ascertained from the records that are available before this Court, are as follows.
2. On 27.05.2016, the complainant-Dr.K.T.Prakash Reddy (also the second respondent) was deputed to the Primary Health Centre ("PHC"), Gudekote and Kudligi for performing surgeries, and among the 24 persons who had approached him for surgery, he performed surgeries on four persons and did not perform surgery on the rest, stating that they were unfit for surgery.
3. Among the persons refused for surgery was one Smt.Jayamma, who had variation in blood pressure when -3- NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 she came to the PHC at Gudekote. She was therefore sent by an ambulance to VIMS Hospital, Ballari but passed away on the way, as a consequence of which her relatives filed a complaint for initiation of criminal action.
4. On the basis of said complaint, an FIR was registered on 27.05.2016 by the petitioner herein. On 14.09.2017, the petitioner was transferred and his successor proceeded to complete the investigation, which resulted in the filing of a 'B' report on 28.12.2017, and the same was also accepted by the Trial Court on 26.03.2018.
5. The second respondent, thereafter, proceeded to lodge a complaint with the Upa-Lokayukta on 11.02.2019 and in said complaint, it was alleged that the petitioner, pursuant to the FIR registered by him and even though the second respondent had not conducted any surgery, had been issued a notice on 07.06.2016 and was directed to be present for investigation, and he had accordingly appeared before the petitioner and requested to cite him as a witness and not to make him an accused. -4-
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6. It was alleged that the petitioner, even though the 'B' report was filed, had made a demand for payment of Rs.2,50,000/- as bribe and the second respondent had expressed his inability to pay such a huge sum and requested for time till January, 2018. It was alleged that this demand for a bribe was frequently reiterated and the same was also avoided by the second respondent stating that the amount would be paid after the settlement of revised pay scale arrears. It was also stated that on 20.11.2018, a demand for bribe was once again made and he was also contacted on 21.01.2019 for payment of the bribe. It was alleged that the second respondent was being constantly harassed by demanding a bribe of Rs.2,50,000/- for filing the 'B' report.
7. Before the Upa-Lokayukta, a compact disc, which was alleged to contain the record of telephonic conversation between the petitioner and the second respondent, was also produced. The Upa-Lokayukta, having considered the entire material, was of the opinion -5- NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 that the audio conversation in the compact disc indicated demand for payment of a bribe. Believing that this amounted to a prima facie case with respect to demand for a bribe, it concluded on 07.08.2018 to refer the matter to the ADGP for investigation and for a report.
8. The Police Inspector of the Anti-Corruption Bureau ("ACB"), Ballari who was entrusted with the matter inquired into the matter, and the second respondent also appeared before him on 21.12.2019 and reiterated the averments that he had made in the complaint. The Inspector, after hearing the audio conversation recorded in the compact disc, noticed that prima facie the allegation that the petitioner had made a demand for payment of bribe of Rs.2,50,000/- for filing a 'B' report was made out and he thereafter sought the opinion of the Senior Legal Advisor of the ACB, who, in turn, was of the view that criminal proceedings were to be initiated against the petitioner for the offences punishable under Sections 7(a), 7(b), 13(1)(c) read with Section 13(2) of the Prevention of -6- NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 Corruption Act, 1988 ("the PC Act") and also obtained the approval of the Superintendent of Police, ACB, Ballari on 08.01.2020 for registering a criminal case. Accordingly, the Police Inspector lodged a complaint to the Deputy Superintendent of Police, ACB, Ballari, who proceeded to register a crime against the petitioner in Crime No.1/2020.
9. Being aggrieved by the registration of the crime, the present petition has been filed.
10. Learned counsel for the petitioner-Mr. Venkatesh P. Dalwai contended that the initiation of criminal prosecution against the petitioner was illegal, since the petitioner was working in the Gudikote Police Station only till 14.09.2017 and the 'B' report had been filed before the Trial Court by his successor-in-Office nearly six months thereafter, on 26.03.2018. He thus submitted that since the 'B' report had been filed six months after he had relinquished the Office, the allegation that he had continued to make a demand for payment of bribe of Rs.2,50,000/- from the second respondent was wholly untenable. He submitted -7- NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 that the registration of FIR was impermissible on the basis of a complaint lodged before the Lokayukta under Section 7 of the PC Act. He further submitted that the Lokayukta or the Upa-Lokayukta could initiate prosecution only after an investigation is made into a complaint filed under Section 7 of the PC Act and, therefore, the Inspector did not possess the jurisdiction to register an FIR on the basis of the complaint lodged under Section 7 of the PC Act.
11. Mr. Santosh B.Malagoudar-learned counsel appearing for the Lokayukta, per contra, supported the registration of the criminal case and contended that the criminal law can be set into motion by any person. He submitted that in the instant case, it is no doubt true that a complaint was given to the Lokayukta under Section 7 of the PC Act and the Lokayukta after considering the material on record sought to secure the report of the ADGP, ACB and when the matter was thereafter examined, it was concluded that there was a prima facie case for -8- NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 registration of a crime and there was thus no illegality in launching a criminal prosecution.
12. Mr. Dalwai appearing for the petitioner further submitted that there was no demand and acceptance from reading of the complaint, and even if the entire averments in the complaint were considered to be true, the allegation would only amount to a demand. He submitted that since there was no acceptance in light of the judgment of the Hon'ble Supreme Court in the case of Neeraj Dutta1, an offence under Section 7 of the PC Act could not be alleged against the petitioner.
13. In addition to the above citations and in support of his contentions, Mr. Dalwai also placed reliance on the following judgments to contend as summarized below:
a. Manjunath v. the State of Karnataka & Anr., W.P. No.10027/2022: demand and acceptance of illegal gratification by a public servant is sine 1 Neeraj Dutta1 v. State (Govt. of N.C.T. of Delhi), 2023 SCC Online SC 28.-9-
NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 qua non for establishing an offence under Section 7 of the PC Act, and that mere demand or mere acceptance without demand would not be sufficient to prove an allegation as per Section 7 of the PC Act. Furthermore, delay in lodging a complaint in that regard would render the proceedings bad in law; and b. Sri. Thippeswamy B.M. v. the State by Karnataka Lokayukta, W.P. No.15644/2022 and Sri. Shrikant v. the State of Karnataka, Crl.P. No.101560/2023: on the necessity of demand and acceptance to constitute an offence Section 7 of the PC Act.
14. Having regard to the above arguments, the only question to be considered in this case is -
"Whether an FIR could be registered by the Deputy Superintendent of Police, ACB on the basis of a complaint lodged under Section 7 of the PC Act?"
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15. It is no doubt true that on receipt of a complaint, the Lokayukta can cause an investigation to be done and upon completion of the same, the Lokayukta has the option of making a recommendation to the competent Authority for further action, and in addition, he also possesses the jurisdiction to initiate a criminal prosecution if he is satisfied that such public servant has committed a criminal offence.
16. Pursuant to the abolition of the ACB in 2022, the conferment of the status of a "police station"2 given to the ACB was also quashed. Consequently, the declaration of the Police Wing of the Lokayukta as a "police station"
under Section 2(s) of the Criminal Procedure Code, 1973 ("the CrPC") vide notifications dated 06.02.1991, 08.05.2002 and 05.12.2002 were restored, and the Police Wing attached to the Lokayukta would now have to be 2 Section 2 (s): "police station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;
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NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 considered as a "police station" as per the abovesaid definition.
17. If on receipt of a complaint the Lokayukta were to seek the opinion of the ADGP of the ACB, and if the Police Officers working under the ADGP are of the view that a cognizable offence is made out under the PC Act, there can be no bar for registration of an FIR. Merely because the Lokayukta has the power to launch an investigation and has deemed sanction for launching an investigation under Section 14 of the PC Act, that would not debar the Police attached to the Lokayukta to register a crime.
18. It is to be noticed here that on the registration of a crime by the Lokayukta Police, which is notified as a Police Station under Section 2(s) of the CrPC, it would have to proceed in accordance with the provisions of the PC Act and seek sanction from the competent Authority before launching prosecution. The mere registration of an FIR would not, in any way, prejudice a public servant since the
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NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 Police Officer registering an FIR would have to follow the procedure prescribed under the PC Act.
19. The argument advanced that the entire averments are untenable since the petitioner was transferred on 14.09.2017 itself and the 'B' report filed before the Trial Court was about six months thereafter on 26.03.2018 by the successor of the petitioner, which had also been accepted by the Police cannot be a consideration for quashing of the proceedings. He also argued that since the 'B' report had already been filed, the question of the petitioner taking illegal gratification for an act already done in the year 2017 would be completely misconceived. He submitted that having regard to the fact that the petitioner was a Police Inspector, the assumption that he was unaware of the filing of the 'B' report cannot be accepted at all.
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20. A seven-Judge Bench of the Hon'ble Supreme Court in the case of Sita Soren3 has, inter alia, recently held as follows -
"122. Under Section 7 of the PC Act, the mere "obtaining", "accepting" or "attempting" to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The First Explanation to the provision further strengthens such an interpretation when it expressly states that the "obtaining, accepting, or attempting" to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained."
21. A reading of said extract would indicate that the mere attempt to obtain an undue advantage, by itself, 3 Sita Soren v. Union of India, (2024) 5 SCC 629.
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NC: 2024:KHC-D:10235 CRL.P No. 101908 of 2023 would constitute an offence and the actual performance of the act for which the illegal gratification was sought is not necessary. Thus, the fact that the 'B' report was filed much before the demand was made would be of no consequence since the offence alleged against the petitioner was one of demand of illegal gratification, which, by itself, constitutes an offence. In view of the judgment of the Hon'ble Supreme Court in Sita Soren (supra), the judgments relied upon by Mr. Dalwai would also be of no avail.
22. In light of the above, I am of the view that there is no justification for quashing of the proceedings, and this petition is therefore dismissed.
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JUDGE HNM List No.: 19 Sl No.: 1