Karnataka High Court
Pramod S/O. Eknath Kindalkar vs Karnataka Lokayukta Karwar on 11 July, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 11th day of July 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Petition No.101410/2014
Between:
Pramod,
S/o Eknath Kindalkar,
Age: 51 years,
Occ: Revenue Officer,
CMC Karwar, R/o: Baithkol,
Tq. & Dist: Karwar. ...Petitioner
(By Sri Murthy D. Naik & Sri. M.L. Vanti, Advocates)
And:
Karnataka Lokayukta Police
Station, Karwar,
Dist: Karwar. ...Respondent
(By Smt. Nirmala S.Sutagattimath, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C. seeking to allow the Criminal Petition and quash
the FIR registered by the respondent dated 31.07.2014 at
Lokayukta P.S., Karwar Crime No.6/2014, for the offences
punishable under Sections 7 and 13(1)(d) of the
Prevention of Corruption Act in respect of the
petitioner/accused.
This Criminal Petition coming on for Final Hearing on
02.06.2017, having been heard and reserved for Orders,
this day, the Court made the following:
2
ORDER
This is a petition filed by the petitioner/accused under Section 482 of the Code of Criminal Procedure praying this Court to quash the FIR, dated 31.07.2014, registered by the respondent-Lokayukta for the offences punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act', for short).
2. Brief facts of the prosecution case, as per the complaint averments, are that one T. Nagesh Shetty, Dy. Superintendent of Police, Karnataka Lokayukta, Karwar, filed a requisition dated 31.07.2014, addressing it to the Court of Special Judge and Sessions Judge, Uttara Kannada District, Karwar, wherein he has alleged that, in the Uttara Kannada District, Karwar City Municipal Corporation, corrupt practice is going on and the complainant has received information in that regard. In the said requisition, the Dy.S.P. has mentioned that in view of the said information, he wanted to conduct a raid on the 3 said office, verify the documents and take appropriate action in the matter.
3. On the basis of the said requisition/complaint, FIR came to be registered in Crime No.6/2014 of Karnataka Lokayukta Police Station, Karwar, for the offence under Sections 7 and 13(1)(d) of the PC Act. Panchanama was drawn on 31.07.2014, to which one Sunil Harishchandra Tandel, a resident of Karwar, and one Girish Purushottam Sail, are the panch witnesses. In the body of the said panchanama, it is mentioned that on 31.07.2014, as per the request made by the Police Inspector, Karnataka Lokayukta, their higher officers sent them to act as panch witnesses in the lokayukta case and to co-operate with the police. Accordingly, the panch witnesses appeared before the police officer viz., Sri. Kirankumar Naik, and they agreed to act as panch witnesses in the said case. Then, the complainant, Sri T.Nagesh Shetty, read over the contents of the said complaint to the panch witnesses and they understood the contents of the complaint with regard to the corrupt practice going on in the office of the City 4 Municipal Corporation, Karwar, and they were informed that the police officer wanted to conduct a raid on the said office. Panch witnesses were shown the search warrant obtained from the Court. Thereafter, the panch witnesses, the Police Inspector, staff of the police, a stenographer by name Smt. Kavita Kamble and a women HC by name Smt. Shobha Naika, all went in a government vehicle and came nearby the office of the City Municipal Corporation and stopped their vehicle. The Police Officer, along with the panchas and other staff, entered in the office and each of the police staff were assigned to keep a watch on the office rooms of the officials of the CMC, and the police staff were instructed that the official of the said office rooms not be permitted to go out. The Commissioner of the CMC and other staff, who participated in the meeting were also secured. Then the Police Inspector, along with panchas and other staff entered into the office of the Commissioner and introduced to the Commissioner, shown the search warrant obtained from the Court, thereafter obtained the signature of the said Commissioner on the warrant and so 5 also the signature of the panch witnesses. Then the Police Inspector informed one Sri. Mohanraju K.M., Commissioner of the Corporation that there is a complaint about the corrupt practice in the said office and asked him to produce the cash declaration book, for which the Commissioner informed that no such register was maintained in their officer. At about 13.10 hours, the room of the Commissioner, located on the southern side of the building, was verified wherein there were table and chair in the said room and the drawer of the table were checked and when the Commissioner was personally checked, he was having Rs.780/- and as it was stated that the said amount belonged to him personally it was left with him. Thereafter they went to room of the Accounts Superintendent, which was by the side of the store room, where one Sri M.R.Naik was working as an Accounts Superintendent and he was present there, and when the drawers of the table in the said room was checked, there were no files or the applications which were barred by time and when his table drawer and personal search was 6 conducted, it was found that Sri M.R.Naik was having Rs.570/- and as it was his personal money the same was left with him. Then they went towards the tables where the staff of the said office were seated and when inspected, including the manager by name Smt. Surekha Parsekar, there were 8 staff members who were present. Though their tables were verified no files or the applications which were barred by time were pending. Then they went to the room of the Health Inspector and staff which was on the southern side of the building in the 3rd room wherein Health Inspector by name Sri Mahammed Yakoob was sitting, his table was also checked and nothing was found and when he was personally searched, he was having Rs.250/- in his purse and, as it was his personal money, it was left with him. In the first room of the said building, a SDA by name Sri S. Ravi was present there and he was collecting the business/commercial licence fee and fee with regarding to cleaning of septic tank and he was having the bills for Rs.6,280/- and same amount was also collected and it was with him, and except that nothing was found 7 with him and in the same room, one Smt. Sarojini Naika, SDA, Birth and Death Division, was working there. Then in the second room of the building a SDA by name Vinod P.Naika and worker of said Corporation one Shri Prakash Shetty was present. Their tables and drawers were also checked, but nothing was found. Even during the personal search of them nothing was found. Then they went to the office of the Revenue Office and Revenue Inspector, where, Shri Pramod Ekanth Kindalkar i.e., the petitioner herein, was present and when his table and the drawer and so also the Godrej Almiriah were checked, no time barred files or applications were found there. Then, a personal search of the petitioner was conducted and in the purse, which he had kept in his pocket, 11 notes each of Rs.1,000/- denomination were found. When the Police Inspector enquired with the petitioner about the said money, the petitioner informed the Police Inspector that he always used to keep such amount of money in his purse and when the Police Inspector questioned him from where he got the said money, he did not give proper answer. 8 Petitioner was also asked by the police that if he was having any document for the same, he could produce it. For that, the petitioner told that he was not having any documents. Therefore, the police confirmed that the said amount was collected by the petitioner from the public by exercising his power through corrupt practice. The police inspector seized that amount in the presence of the panch witnesses. The amount was put into a cover and seal was put containing the letter 'A' and it was taken into custody of the police. When the petitioner was asked to give his explanation with regard to the amount of Rs.11,000/-, he gave his explanation in writing. He has stated in his explanation that when the Lokayukta Police visited the office and verified the files, tables and drawers, he was having Rs.1,000/- in his purse and he also used to keep an amount of Rs.5,000/- to Rs.10,000/- for emergency purpose; that on 15.05.2014, he had withdrew Rs.50,000/- from Syndicate Bank, Karwar; he kept the amount in the house and out of Rs.50,000/-, only Rs.10,000/- was taken and kept in his pocket and that 9 there is no other amount. Hence, it is mentioned that the present petitioner being a Revenue Officer in the CMC, Karwar, without having any document, he was having an amount of Rs.11,000/- and it was confirmed that the said amount was collected from the public by way of corrupt practice. Hence, the case was initiated against the present petitioner for the said offences.
4. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned Special Public Prosecutor for the respondent-Lokayukta.
5. Learned counsel for the petitioner made the submission that to attract the alleged offence under Sections 7 and 13(1)(d) of the PC Act, there must be a demand and acceptance of the bribe amount by the petitioner from somebody whose work is pending in his office. Learned counsel made the submission that, in this case, it is not the case of the prosecution that a demand made by the present petitioner for the bribe amount from anybody and there is no complaint from anybody alleging 10 that the present petitioner demanded bribe amount from them in order to do favour to them regarding their pending work in the office of the petitioner. Learned counsel made the submission that petitioner had given his explanation that he had withdrew a sum of Rs.50,000/- from Syndicate Bank from his account to meet the daily maintenance expenses of his house and out of that amount he had kept a sum of Rs.10,000/- in his purse and the remaining amount in his house. Hence, the counsel submitted that in spite of said explanation offered by the petitioner that the amount of Rs.11,000/- (Rs.10,000 + Rs.1,000/-) belonged to him, unnecessarily, the Lokayukta Police apprehended the petitioner thinking that it is the bribe money said to have been collected from the public. He made the submission that there is no trap proceedings conducted wherein the present petitioner is said to have been caught red-handed while receiving the bribe amount from anybody. Hence, the learned counsel submitted that there is no prima facie case made out by the prosecution in registering the criminal case against the present petitioner. 11 Hence, he submitted that it is abuse of process of the Court and the same is to be quashed. Counsel also made the submission that implication of the petitioner in the criminal case is affecting his career as he is due for promotion. In support of his contentions, learned counsel for the petitioner also relied upon the following decisions:
1) A. Subair Vs. State of Kerala reported in (2009)6 SCC 587
2) Ranvir Yadav Vs. State of Bihar reported in (2009)6 SCC 595
3) Division Bench Judgement of this Court rendered in Crl. P. No.15941/2012 and connected matter, decided on 05.02.2013.
4) State of Haryana and Others Vs. Bhajanlal and Others reported in 1992 SCC (Cri) 426
5) Mulakh Raj and Others Vs. Satish Kumar and Others reported in 1992 SCC (Cri) 482
6) Lalita Kumar Vs. Govt. of U.P. reported in (2014)2 SCC 1
7) State of Orissa Vs. Debendra Nath Padhi reported in 2005 SCC (Cri) 415
8) Fatima Riswana Vs. State reported in 2005 SCC (Cri) 427
9) B. Jayaraj Vs. State of Andhra Pradesh reported in (2014)13 SCC 55 12 Hence, he submitted to allow the petition and to quash the proceedings initiated against the petitioner.
6. Per contra, learned Special Public Prosecutor made the submission that looking to the panchanama it clearly goes to show that when the raid was conducted on the office of the petitioner and a personal search of the petitioner was made, the petitioner was found with cash of Rs.11,000/- in his purse and he had not produced any documents to show as to how he came in possession of the said amount of Rs.11,000/-. Learned Special Public Prosecutor further made the submission that the cash declaration register was not maintained. He also submitted that the matter is still under investigation and, at this stage, it is too premature to come to a conclusion regarding the alleged offences. Hence, the learned Special Public Prosecutor made the submission that the material on the side of the prosecution shows a prima facie case as against the present petitioner. Hence, he submitted to reject the petition.
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7. I have perused the grounds urged in the petition, FIR, complaint and the panchnama for the seizure of the amount said to have been possessed by the petitioner/accused, and also perused the other material produced by the petitioner along with the petition.
8. The offences alleged as against the present petitioner are under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. I have perused the said provisions. Section 7 of the PC Act reads as under:
" 7. Public servant taking gratification other than legal remuneration in respect of an official act.
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or 14 Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanation. -
(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification. -The word "gratification" is not restricted to pecuniary gratification or to gratifications estimable in money.
(c) "Legal remuneration". -The words "legal remuneration" are not restricted to remunerations which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organisation, which he serves, to accept.
(d) "A motive or reward for doing". -A person who receives a gratification as motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression;
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."15
The provision, Section 13(1)(d) of the PC Act reads as under:
" 13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct, -
(a) xxxxxxxxxxxxxxxxx
(b) xxxxxxxxxxxxxxxxxx
(c) xxxxxxxxxxxxxxxxxx
(d) If he, -
(i) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or Pecuniary advantage; or
(ii) By abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"
Looking to the wordings in the said provision, it is no doubt true that sofar as the alleged offence under Section 7 of the PC Act is concerned, the prosecution need not establish that there was a demand for the bribe amount or illegal gratification by the public servant. The said provision goes to show that any person being a public servant accepts or 16 obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing any favour in respect of an official act. It is also true that sofar as the offence under Section 13(1)(d) of the PC Act is concerned, the wordings goes to show that, if by corrupt or illegal means, a public servant obtains for himself or for any other person any valuable thing or Pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest, then the offence under Section 13(1)(d) will be attracted. But coming to the case on hand, on going through the mahazar dated 31.07.2014, which is said to have been drawn in the presence of panch witnesses viz., Sunil Harishchandra Tandel and Girish Purushottam Sail, the contents of the mahazar proceedings goes to show that the Police Inspector obtained a search 17 warrant from the Court and, thereafterwards, they all left to the office of the CMC, Karwar, at about 1.00 p.m. and they checked the officials working in the said office. The panchanama contains all the details about the search made in respect of other also. But, so far the present petitioner is concerned, it is mentioned that when they went to the table of the present petitioner; they searched the table drawer and nearby almirah and noticed that there were no time barred files. It is further stated in the said mahazar that the Police Inspector conducted the personal search of the petitioner herein and the petitioner was found with 11 notes of Rs.1,000/- denomination i.e, an amount of Rs.11,000/-. It is further stated in the mahazar that when the petitioner was enquired as to how he came in possession of that much money, petitioner had not given satisfactory answer and he did not produce any documents about the said money. Therefore, it was confirmed by the police that it was the money which he had received by way of bribe from the public and the same was seized in the presence of panch witnesses. When he 18 was asked to give in writing, he has offered his explanation and in the said explanation, petitioner has mentioned that when the Lokayukta Police visited the CMC office, at that time, he was having Rs.1,000/- in his purse and also stated that he always used to carry a sum of Rs.5,000/- to Rs.10,000/- in his purse for meeting the urgent requirements. It is also his explanation that the said amount was withdrawn from the Syndicate Bank, Karwar, on 15.05.2014 and the said amount he has kept in his house as the same was required for monthly expenses and purchasing the household necessities and out of that amount, he had taken Rs.10,000/- and kept it in his pocket and the said amount is not at all any other amount.
9. Looking to the materials placed on record, it is not claimed by any member of the public that the petitioner herein received the bribe amount from them promising or assuring them that he would do favour to them in the official act. No such material is placed on record. Therefore, for the Police Inspector to draw such an inference that it is bribe money which he has received 19 from the public, there is no basis at all. It is not the case of a trap conducted, firstly, by taking entrustment mahazar using phenolphthalein powder to the notes which are intended to be given to the petitioner by any member of the public by way of illegal gratification for getting any favour from the petitioner. It is a case of giving surprise visit to the office and immediately conducting personal search of the petitioner/accused. The petitioner has offered his explanation that it is his own money and also explained that Rs.50,000/- was drawn by him from the Syndicate Bank for meeting household expenses and out of the said money he carried a sum of Rs.10,000/- in his pocket. Considering these materials placed on record, I am of the opinion that the prosecution has not placed any material to attract the offence either under Section 7 or Section 13(1)(d) of the PC Act. In this connection, the learned counsel for the petitioner herein relied upon the Division Bench Judgement of this Court rendered in Crl. P. No.15941/2012 and connected matter, decided on 20 05.02.2013. In paras 8, 9 and 10 of the said judgment it is observed as under:
" 8. In trap cases, the question of surprise raid is not conceivable and tenable unlike investigation in the case of an offence relating to assets which are disproportionate to known source of income. The method of surprise raid is totally impertinent and irrelevant in a trap case. Otherwise, the investigating officers would become arbitrary and could create unwarranted commotional atmosphere in the public offices. As we could see in the present case, there is no complaint from the person giving illegal gratification. No evidence is conceivable regarding demand and acceptance of bribe. The mere possession of some money in the hands of document writers would not suggest or substantiate the offence of demand and acceptance of illegal gratification by the Sub-Registrar and the officials of the office of the Sub-Registrar.
9. Therefore, in all trap cases, it is just and necessary that recording of complaint and submission of FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. If this type of investigation by surprise raid in trap cases is permitted, it would demoralize the public administration and the SHOs of Lokayuktha police stations would tend to misuse the powers of 21 investigation. It is therefore necessary that the Director General of Police shall properly educate all SHOs of Lokayuktha Police Stations in the State about the legal requirements of investigation to be complied in trap cases. Besides, written guidelines be laid down to be followed in the protocol of investigation in a trap case. Non-adherence to protocol of investigation by the investigating officer should necessarily result in disciplinary action.
10. With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a police officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR. "22
Therefore, looking to the materials placed on record and so also the decision of the Division Bench of this Court, I am of the opinion that the registration of the FIR as against the present petition is without any basis and without any prima facie material, and it is nothing but an abuse of process of the Court and the same is not sustainable in law.
10. Accordingly, the petition is allowed. The criminal proceedings initiated as against the present petitioner in Lokayukta Police Station Crime No.6/2014 for the offence under Sections 7 and 13(1)(d) of the PC Act, are hereby quashed.
Sd/-
JUDGE Kms