Karnataka High Court
Sri. S.C. Jayachandra vs State Of Karnataka on 18 May, 2020
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF MAY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.1479/2019
BETWEEN
SRI S.C.JAYACHANDRA
S/O CHIKKABORIAH,
AGED ABOUT 60 YEARS,
RETIRED AS CHIEF ENGINEER,
HEMAVATHI PROJECT,
GORURU, HASSAN DISTRICT,
R/AT No.191, SHAKYA,
6THMAIN ROAD, BCC HBCS,
CHANDRA LAYOUT,
BENGALURU-560 040.
PRESENTLY R/AT No.150,
6TH CROSS, BAPUJI LAYOUT,
CHANDRA LAYOUT,
BANGALORE-560 040.
...PETITIONER
(BY SRI C.V.NAGESH, SENIOR COUNSEL FOR
SRI SANDEEP S.PATIL, ADV.,)
AND
STATE OF KARNATAKA
BY POLICE INSPECTOR,
KARNATAKA LOKAYUKTHA
POLICE WING, CITY DIVISION,
BENGALURU-560 001.
REPRESENTED BY ITS
PANEL COUNSEL.
...RESPONDENT
(BY SRI B.S.PRASAD, SPL.PP)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF THE CODE OF CRIMINAL
PROCEDURE, 1973, PRAYING TO SET ASIDE THE ORDER DATED
05.10.2019 PASSED IN SPL.C.C.No.473/2019 WHICH IS
PENDING ON THE FILE OF THE LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR PREVENTION
OF CORRUPTION ACT, 1988, AT BENGALURU AND FURTHER BE
PLEASED TO REVERSE ON THE APPLICATION FILED BY THE
PETITIONER UNDER SECTION 227 OF THE CODE OF CRIMINAL
PROCEDURE AND BE PLEASED TO GRANT THE APPLICATION
AND ORDER DISCHARGE WHILE SETTING AT NAUGHT THE
ORDER DATED 25.04.2019 IN SPL.C.C.No.473/2019 PASSED BY
THE LEARNED SPECIAL JUDGE TAKING CONGNIZANCE OF THE
OFFENCE AND ISSUANCE OF SUMMONS ON THE STRENGTH OF
THE FINAL REPORT OF THE CASE FILED UNDER SECTION 173
OF THE CODE OF CRIMINAL PROCEDURE, BY THE
RESPONDENT-LOKAYUKTHA.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 13.02.2020 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This Criminal Revision Petition is filed by the petitioner assailing the order of dismissal of the application under Sections 227 and 239 of Code of Criminal Procedure (for short Cr.P.C.) by the LXXVI Additional District and Sessions Judge and Special Judge, Bengaluru City, Bengaluru (hereinafter referred to as Special Court/Trial Court) in Special C.C.No.473/2019 dated 05.10.2019. 3
2. Heard the arguments of Sri C.V.Nagesh, learned Senior counsel appearing for learned counsel for the petitioner and Sri B.S.Prasad, learned Special counsel for the Lokayuktha.
3. The ranks of the parties before the trial Court is retained for the sake of convenience.
4. The case of the prosecution before the Trial Court is that the Lokayuktha Police filed charge-sheet against the accused for the offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C .Act'). After taking cognizance, the accused was summoned to appear before the Trial Court. The accused filed an application under Sections 227 and 239 of Cr.P.C. seeking discharge on various grounds. After considering the arguments, the trial Court dismissed the application vide impugned order dated 05.10.2019 which is challenged before this Court by way of revision. The learned senior counsel argued by 4 challenging the impugned order especially on four grounds, which are as follows:
i) The Trial Court has illegally taken cognizance of the offence under Section 190 of Cr.P.C. without application of mind and issued summons as per Section 204 of Cr.P.C.
ii) The Trial Court while taking cognizance has held after filing the charge-sheet that it has perused the records and cognizance was taken and merely stating that there is sufficient material for framing of charges is not enough. The trial Court ought to have considered the material placed on record not merely on a suspicious ground but it requires to verify as to grave suspicious circumstances are made out, in order to frame charges against the accused.
iii) Once the Investigating Officer filed the charge-sheet. The trial Court took cognizance and discharged the accused in the earlier occasion vide its order dated 01.01.2019 on the ground that the sanction is not a valid sanction and liberty was given to Investigating Officer to file fresh charge-sheet after 5 obtaining valid sanction. Once the accused is discharged in the earlier occasion, the trial Court ought to have considered whether any additional material placed on record or not, in order to take fresh cognizance. Once the Court has taken cognizance and discharged the accused, again the trial Court cannot take cognizance and proceed with the trial against the accused. Therefore, the impugned order is not sustainable and liable to be set aside.
iv) Learned counsel also contended that previously the charge-sheet filed for the offence under Section 13(1)(e) of the P.C. Act and the accused came to be discharged on 01.01.2019 in Spl.C.C.138/2018, but while filing the charge-sheet for the second time on 22.04.2019, the Amendment Act came into force w.e.f., 26.07.2018 and as per the amended Section 13 of the P.C. Act, there is no sub-section (e) to Section 13 in the Amended Act, it was deleted. Insertion of new provisions to Section 13 contains only 13(1)(a) and (b) and there is no sub-sections (c), (d) and (e) to Section 13 as it was in the earlier 6 provision. Therefore, framing of charges under Section 13(1) (e) of P.C. Act is also not correct. Hence, the impugned order challenged under revision requires to be set aside.
Hence, prayed for allowing the revision petition.
5. In support of the case, the learned Senior counsel relied upon the following judgments of the Hon'ble Supreme Court:
i) (2013) 4 SCC 505 - GHCL Employees Stock Option Trust vs. India Infoline Limited;
ii) (2015) 4 SCC 609- Sunil Bharti Mittal
vs. CBI; and
iii) (2010) 2 SCC 398 - P.Vijayan vs.
State of Kerala and another.
6. Per contra, learned Special counsel appearing for the Lokayuktha has supported the impugned order and contended that the Trial Court after considering the documents on record, verified the FIR, Panchanama, fresh 7 sanction order etc., and being satisfied with the documents produced by the Investigating Officer along with the charge-sheet has taken the cognizance. Hence, there is no illegality or error committed by the Trial Court. Merely it has stated as 'perused the records' in paragraph No.3, but in paragraph No.2, it has clearly stated as to what are the documents verified by the trial Court and thereafter, cognizance came to be taken. There is no error in taking the cognizance. In support of his case, learned Special counsel relied upon the judgment of the Hon'ble Supreme Court in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta reported in LAWS (SC) 2019, 214 and further contended that speaking or reasoned order is not required at the stage of taking cognizance and issuing process. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Mehmood Ul Rehman vs. Khazir Mohammad Tunda and others reported in (2015) 12 SCC 420.
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7. Learned Special counsel also contended that while considering the material for framing of charges, the Court cannot look into the probative value of the documents and a strong prima facie material is enough for framing of the charge. As regards the 3rd ground urged by the counsel for the petitioner, the Special Counsel contended that the charge-sheet came to be filed on the previous occasion prior to the amendment of the P.C. Act in the year 2018 and the offence was committed between 1985 and 2008. The charge-sheet was also filed and accused was discharged on the previous occasion. Thereafter, once again the charge-sheet came to be filed by obtaining a fresh sanction. Therefore, the accused is required to face the trial for the offence committed under the un-amended provision of Section 13(1)(e) of P.C. Act. The trial Court need not frame the charges under amended provision of Section 13(1)(b) of the P.C. Act, which came into force from 26.07.2018. Therefore, it is argued that the said ground is not available to the accused for discharge. 9
8. Learned Special counsel also argued on the 4th ground urged by the petitioner that once cognizance has been taken and the accused was discharged, thereafter, the prosecution obtaining a fresh sanction and once again filing the charg-sheet before the trial Court is nothing but taking a fresh cognizance and therefore, the accused is not entitled for discharge as the cognizance taken for the second time cannot be held as illegal. He further contended that while discharging the accused, the Trial Court granted liberty for filing the charge-sheet after obtaining fresh sanction. Granting of liberty by the Trial Court has not been challenged by the accused. Therefore, prayed for dismissing the revision petition.
9. Upon hearing the arguments of learned counsel for the parties and on perusal of the record, the points that arise for my consideration are:
"1. Whether the trial Court committed error in taking cognizance and issuing process under Section 204 of the Code of Criminal Procedure, 10 to the accused is non application of mind by the trial Court which call for interference?
2. Whether the trial Court has no power to taken cognizance for second time on the fresh charge sheet filed by the prosecution after the discharge of the accused on the previous occasion?
3. Whether the charges required to be framed, either for the offence under un-amended provision of Section 13(1)(e) or amended provision Section of 13(1)(b) of the P.C. Act?
4. Whether the impugned order passed under Section 227 of Cr.P.C. call for interference?
10. Learned Senior counsel for the accused/petitioner has vehemently contended that the Trial Court committed error in taking cognizance without application of its mind and issuing process under Section 204 of Cr.P.C., is against the law and settled principles of the Hon'ble Supreme Court and in support thereof, he relied upon the judgment of the Hon'ble Supreme Court in the case of 11 GHCL Employees Stock Option Trust vs. India Infoline Limited reported in (2013) 4 SCC 505, wherein the Hon'ble Supreme Court has held at Head Note 'B' as under:
"B. Criminal Procedure Code, 1973 - S.204- Complaint case - Summoning of accused - Obligation of Magistrate while passing order - Held, summons order must reflect that Magistrate has applied his mind to facts of case and law applicable thereto - Recording of his satisfaction as to existence of a prima facie case against accused on basis of specific allegations made in complaint supported by satisfactory evidence and other material on record, held, is necessary -Penal Code 1860, Ss.415, 409 r/w Ss. 34 & 120B.
Held:
Summoning of accused in a criminal case is a serious matter. Hence, the criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate 12 has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. In the present case, in the summoning order the Magistrate has not recorded his satisfaction about a prima facie case as against respondents 2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors of the accused Company which is sine qua non for initiation criminal action against them."
11. Further, learned Senior Counsel relied upon the judgment in the case of Sunil Bharati Mittal vs. Central Bureau of Investigation reported in (2015)4 SC 609 on Head Note 'D', which is as under:
"D. Criminal Procedure Code, 1973 - Ss.190 and 200 to 204 - Cognizance - Meaning and scope - Cognizance can be taken under the three conditions mentioned in S.190 - Expression "taking cognizance" has not been defined in CrPC - However, when the Magistrate applies his mind for proceeding 13 against persons concerned, he is said to have taken cognizance of an offence - Sine qua non for taking cognizance of offence is application of mind by Magistrate and his satisfaction that allegations, if proved, would constitute an offence - It is, therefore, imperative that on a complaint or on a police report, Magistrate is bound to consider question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect - Words and Phrases - "Cognizance"."
12. I have perused the aforesaid judgments. By applying the principles laid down by the Hon'ble Supreme Court in the judgments stated supra and on perusal of the case on hand, the Trial Court while taking cognizance and issuing process, has passed the following order:
" The Karnataka Lokayuktha City Division, Bengaluru, have filed the charge sheet against the accused, that the accused has made total assets of Rs.2,27,13,936/-. And his total expenditure is Rs.1,71,95,040/-. The total of assets and expenditure comes to Rs.3,99,08,976/-. The income of the accused and his family from all sources is 14 Rs.2,02,50,007/-. The accused from 1.2.1985 to 18.12.2008 working as Chief Engineer of Hemavathi Project, Goruru, Hassan, as on 18.12.2008, has made disproportionate assets of total Rs.1,96,58,969/- i.e. 97.08%, and committed offence punishable u/s 13(1)(e) R/w 13(2) of Prevention of Corruption Act, 1988.
2. The prosecution has produced the fresh Sanction dated 20.03.2019, authorization dated 17.12.2008, F.I.R., Source Report, P.F., Panchanama dated 23.12.2008, Panchanama dated 18.12.2008, property documents, Panchanama dated 18.12.2008 and other documents.
3. Perused the documents.
4. Found prima facie case, Cognizance is taken. Register the case as Special Case, and issue summons to accused returnable by:
27.05.2019."
13. Before appreciating the validity of the order of taking cognizance, it is worth to mention that the accused has not at all challenged the order of the Trial Court for taking 15 cognizance of the offence but filed an application under Sections 227 and 239 of Cr.P.C. and after dismissal of the same, the Criminal Revision Petition came to be filed. However, taken a contention in the arguments that there is no application of mind by the Trial Court while taking cognizance. In this regard, learned counsel for the Lokayuktha argued that while taking cognizance under Section 190(1)&(2) of Cr.P.C., as the Police filed charge sheet, it is not necessary to pass a detailed order unlike in the case of taking cognizance in the private complaint under Section 190(1)(a) of Cr.P.C. In support of the case, he has relied upon the latest judgment of the Hon'ble Supreme Court in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta reported in LAWS (SC) 2019,
214. The relevant paragraphs 21 and 22 read as under:
" 21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected in adequate for supporting the conviction. The court is not required to evaluate the evidence and its 16 merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient found for proceeding....";
whereas for framing the charges, the expression used in Section 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence ....". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the 17 police during the investigation. Investigation officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected and sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under section 190(1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction 18 of the Magistrate considering the Police report and other documents and satisfying himself that there is sufficient ground or proceedings against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record and reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality. ..."
14. Keeping in view the principles laid down by the Hon'ble Supreme Court in the latest dictum stated supra, here in this case, the Lokayuktha Police filed the charge 19 sheet and the Trial Court while taking cognizance need not pass detailed order and hence, issuing process under Section 204 of Cr.P.C. by taking cognizance under Section 190(a)(b) of Cr.P.C. would attract. Therefore, there is no illegality committed by the Trial Court while issuing process against the petitioner and it cannot be said that there is no application of mind by the Trial Court. Even otherwise, the Trial Court considered the documents and proceeded to issue process after satisfaction of the same Judge who passed the order of discharge on the earlier occasion. Therefore, the arguments of learned Senior Counsel Sri C.V. Nagesh cannot be accepted. Accordingly, I answer the Point No.1 in favour of Lokayuktha Police and against the accused.
15. As regards Point No.2, the Trial Court has no power to take cognizance for the second time once the accused is discharged. In this regard, learned counsel submits that the Trial Court after taking cognizance, once discharged, again cognizance cannot be taken for the second time and 20 has no power to direct the Police for further investigation. In support of his arguments, learned counsel for the accused relied upon the judgment in the case of Bikash Ranjan Rout vs. State through the Secretary (Home), Government of NCT of Delhi reported in (2019)5 SCC 542, Head Note 'A' is as under:
"A. Criminal Procedure Code, 1973 - Ss. 173(8), 190(1)(b), 239, 227 and 156(3) - Further investigation in a case after submission of police report under S.173 (2)(i) CrPC - Power of Judicial Magistrate concerned to pass order as to - Scope - Powers available in this regard at pre-cognizance stage and post- Cognizance state - Distinction between
- Making distinction between the power to be exercised by Magistrate with respect to further investigation at pre-cognizance stage and post-cognizance stage, held, Magistrate cannot suo motu direct for further investigation in a matter at post-cognizance stage, more particularly after the discharges the accused - In such cases, it is only on an application moved by the investigating agency for further 21 investigation that the Magistrate may direct the investigating officer to conduct further investigation and submit a fresh report before him for consideration in accordance with law."
Further, at para 8, it has been held as follows:
" 8. In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo motu passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the learned Magistrate ordering further investigation after he discharges the accused, cannot be sustained and the same deserves to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court confirming such an order passed by the learned Magistrate also deserves to be quashed and set aside. At the same time, it will always be open for the investigating officer to file an appropriate application for further investigation 22 and undertake further investigation and submit a further report in exercise of powers under Section 173(8) CrPC."
16. In view of the principles laid down in the above judgment, in the case on hand, the Lokayuktha Police previously filed the charge sheet against the accused and the Trial Court took cognizance and later discharged the accused only on the ground of invalid sanction and liberty granted to the prosecution to file charge sheet after obtaining fresh sanction vide its order dated 01.01.2019, but the said order for filing charge sheet after obtaining fresh sanction has not been challenged by the accused. However, on perusal of the order, there is no order passed by the Trial Court for doing any further investigation. It is only liberty granted to the prosecution for obtaining fresh sanction against the accused. Therefore, it cannot be considered that the Trial Court issued any direction to the Police to make any further investigation and to file charge sheet as per Section 173(8) of Cr.P.C. In view of the judgment of the Hon'ble Supreme Court in Bikash case 23 supra has held that there is no power to direct for further investigation after discharging the accused but granted liberty to the Police to exercise power under Section 173(8) of Cr.P.C. Therefore, the contention of the learned counsel cannot be accepted that the Trial Court committed error in taking cognizance for the second time, once the accused is being discharged, taking of cognizance would extinguish along with the discharge order passed by the Court and thereafter once again if the Police files a fresh charge sheet after taking fresh sanction, the Trial Court is bound to take fresh cognizance as per Section 190(1)(b) of Cr.P.C. on the fresh charge sheet. Therefore, I hold that there is no error in taking fresh cognizance after filing of fresh charge sheet after discharging the accused on the previous occasion.
17. As regards Point No.3 with regard to framing of charges under Section 13(1)(e) of P.C. Act in view of amendment of Section 13(1)(b) of P.C. Act, learned counsel has argued that while filing the charge sheet, the 24 provisions of Section 13(1)(e) of P.C. Act has been repealed and Section 13(1) of P.C. Act has been amended. Therefore, the Trial Court cannot frame charges under Section 13(1)(e) of P.C. Act which was a non-existing provision. In this regard, learned counsel for the Lokayuktha argued that the offence is committed between 1998 and 2005. At that time, the offence which is punishable under Section 13(1)(e) of P.C. Act was existing. The charges were required to be framed only under the law which was existing at that time and not under the present amended provision which came into force from July 2018 i.e. with effect from 26.07.2018. In this regard, a Co-ordinate Bench of this Court has dealt with a similar situation in the case of Panchalingah vs. State of Karnataka in CRP No.485/2019 and connected matters, disposed of on 06.01.2020 and has elaborately discussed various provisions of law and Section 6 of the General Clauses Act and at paragraph 25, it has been held as under:
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"25. I have thoroughly gone through the decisions relied upon by the learned counsel for the petitioners. By giving my thoughtful consideration, I am not having any difference of opinion with regard to the law laid down in the said decisions. But the said principles are not applicable to the facts of the present case. If the intention of the legislation is taken into consideration no legislation would intend to repeal an offence which has already been committed. If such an interpretation is given to the provisions of Section 13(e) and 19(1) of PC Act, it will have a devastating effect on the pending proceedings and it amounts to paving path to the accused persons who are retired public servants to sneak away from prosecution through they have committed serious offense. As such, the contention of the learned counsel for the petitioners is not sustainable in law."
Therefore, this Court has already held that charges are required to be framed for the offences under the law which was in force at the relevant time and date when the offence was committed and not under the non-existing law 26 which came into force only after the offence was committed. Hence, the ground urged by the learned counsel cannot be accepted and the charges are required to be framed against the accused only under Section 13(1)(e) of un-amended P.C. Act, but not under the amended provisions of Section 13(1)(b) of P.C. Act, which came into force with effect from 26.07.2018. It is also worth to mention that the Trial Court already framed the charges as on the relevant date and time of filing this petition. Therefore, the order under revision does not call for interference.
18. As regards Point No.4, the Trial Court dismissed the application under Section 227 of Cr.P.C. The accused is said to have amassed wealth of Rs.1,96,58,969/- as against his known source of income of Rs.2,02,50,007/-, which amounts to 97.08% more than the income. Though earlier he got sanction for 38%, later sanction was granted for 97.08%, which is as per the report of the Investigating Officer, the Trial Court previously discharged the accused 27 on the grant of invalid sanction and later, the prosecution has obtained fresh sanction and laid the charge sheet. Whatever the defence available to the accused shall be considered only after the trial. The Trial Court considering all these aspects rejected the application. The Hon'ble Supreme Court has held in the case of P.Vijayan vs. State of Kerala reported in (2010)2 SCC 398 that the accused is entitled for discharge and the Trial Judge is not a Post-Office to frame the charge at the behest of the prosecution but has to exercise the judicial mind to the facts of the case while passing the order under Section 227/228 of Cr.P.C. and the material on record goes to show that there is strong material placed on record to proceed against the accused by framing of charges and the Trial Court has already framed the charges. Therefore, I do not find any illegality or error committed by the Trial Court in rejecting the application of the petitioner under Section 227 of the Cr.P.C. Hence, the order under challenge does not require interference and the Criminal Revision Petition is liable to be dismissed. 28
19. Accordingly, the Criminal Revision Petition is dismissed. The Trial Court is directed to proceed with the trial against the accused and dispose of the matter in accordance with law.
Sd/-
JUDGE GBB mv