Karnataka High Court
Sri. M Srinivas vs The State Of Karnataka on 17 February, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.33661 OF 2017 (GM-RES)
BETWEEN:
SRI M.SRINIVAS
S/O LATE MUNIYAPPA,
AGED ABOUT 51 YEARS
RESIDING AT NO.1545/10 AND 11,
BEHIND KEB, NEAR VIDHATA SCHOOL,
BAYASAB LAYOUT,
ANEKAL - 562 106.
... PETITIONER
(BY SRI M.S.BHAGWAT, ADVOCATE (VIDEO
CONFERENCING))
AND:
THE STATE OF KARNATAKA
REPRESENTED BY DEPUTY
SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTHA,
BENGALURU RURAL DISTRICT,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI VENKATESH S.ARABATTI, SPL.PP. (PHYSICAL
HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA READ WITH SECTION
482 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
2
PRAYING TO CALL FOR THE RECORDS IN SPECIAL CASE
NO. 99/2015 ON THE FILE OF THE PRL. SESSIONS JUDGE
AND SPECIAL JUDGE, BANGALORE RURAL DISTRICT;
QUASH ALL PROCEEDINGS INCLUDING THE CHARGE
SHEET DATED 12.5.2015 IN SPECIAL CASE NO.99/2015
PENDING ON THE FILE OF PRL. SESSIONS JUDGE,
BANGALORE RURAL DISTRICT AT ANNEX-A AND B
RESPECTIVELY.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is before this Court calling in question entire proceedings in Special Case No.99/2015 registered against him for offences punishable under Section 13(1)(e) of the Prevention of Corruption Act, 1988 ('the Act' for short).
2. Heard Sri.M.S.Bhagwat, learned counsel for petitioner and Sri.Venkatesh.S.Arabatti, learned Special Public Prosecutor for respondent-Lokayuktha.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
3The petitioner is a Government servant having joined service of the State Government as a Second Division Assistant on 18-04-1998 and at the relevant point in time was working as a Senior Sub-Registrar.
On 8-08-2011 when the petitioner was working as Senior Sub-Registrar at Jigani, a search was conducted by the respondent/Lokayukta Police at the office of the Sub-Registrar, Jigani on the basis of certain credible information that the petitioner in collusion with others has been accepting illegal gratification. Pursuant to the said search, mahazar was drawn and FIR against the petitioner was registered in Crime No.23/2011 for offences punishable under Sections 7, 8, 13(1)(c), 13(1)(d) read with Section 13(2) of the Act. On 10-08-2011 further search was conducted in the house of the petitioner and a separate mahazar was drawn.
On the basis of registration of the aforementioned Crime No.23/2011 certain other materials were directed to be collected with regard to income, expenditure and assets 4 of the petitioner. The respondent on the basis of the investigation already conducted in Crime No.23/2011 submitted a source report opining that the petitioners was in possession of disproportionate assets to the extent of Rs.11,17,422/- amounting to 51.87% in excess of his known source of income. On 29-05-2012 the competent authority in the Lokayukta directed registration of case against the petitioner under Section 13(1)(e) read with Section 13(2) of the Act.
4. Based on the said source report on disproportionate assets, an FIR was registered in Crime No.8/2012 for offences punishable under Section 13(1)(e) read with Section 13(2) of the Act on 29-05-2012. In the earlier case/Crime No.23/2011 charge sheet came to be filed against the petitioner after investigation for offences punishable under Sections 7, 8, 13(1)(c), 13(1)(d) read with Section 13(2) of the Act and cognizance for the aforesaid offences was taken by 5 the learned Sessions Judge. Therefore, there were two crimes pending against the petitioner - one in Crime No.23/2011 which after filing of the charge sheet became Special Case No.16/2013 and another in Crime No.8/2012.
5. The petitioner after the police filing the charge sheet in Special Case No.16/2013 seeks discharge from the case by filing an application under Section 227 of the Cr.P.C. The ground urged was that investigation was conducted prior to registration of FIR and there was no formal complaint against him by any third party.
The Special Judge hearing Special Case No.16/2013, by his order dated 21-11-2014 discharged the petitioner from the proceedings. The said discharge order discharging the petitioner in Special Case No.16/2013 has become final.
66. The respondent before filing of the impugned charge sheet seeks sanction of the Appointing Authority to prosecute the petitioner. The competent authority accords sanction to prosecute the petitioner under Section 13(1)(e) read with Section 13(2) of the Act.
Charge sheet was also filed in the said case which came to be registered as Special Case No.99/2015. The charge sheet is filed against the petitioner by the respondent police bringing out that the petitioner has amassed wealth to an extent of 146.13% disproportionate to his known sources of income. The petitioner, on the respondent filing charge sheet, files an application under Section 227 of the Cr.P.C. seeking his discharge from the proceedings. The Special Judge hearing the case passed an order on 28-05-2016 rejecting the discharge application holding that there were sufficient grounds to frame the charge against the petitioner for offence punishable under Section 13(1)(e) read with Section 13(2) of the Act. It is the order 7 rejecting discharge application of the petitioner and the entire proceedings in Special Case No.99/2015 that is called in question by the petitioner in this petition.
7. The learned counsel appearing for the petitioner Sri M.S. Bhagwat would vehemently argue and contend that the FIR in Crime No.23/2011 is the basis for registering FIR in Crime No.8/2012. It is his submission that when the FIR in Crime No.23/2011 was placed before the learned Magistrate search warrant was issued in a mechanical manner contrary to the mandatory procedure under Section 93 of the Cr.P.C.
The learned counsel further contends that on 10-08-2011 the house of the petitioner was searched and thereafter a source report was prepared on 23-05-2012. Based on the investigation Crime No.8/ 2012 was registered for offences punishable under Section 13(1)(e) read with Section 13(2) of the Act 8 pursuant to the aforesaid source report and the search conducted.
8. It is the case of the petitioner that the search was conducted in Crime No.23/2011 which was registered for offences punishable under Section 13(1)(c) and 13(1)(d) read with Section 13(2) of the Act and based on the said source report Crime No.8/2012 was registered for offence punishable under Section 13(1)(e) read with Section 13(2) of the Act. The learned counsel would submit that the materials collected during investigation for offences punishable under Section 13(1)(c) or 13(1)(d) cannot be used to register offence under Section 13(1)(e) of the Act.
9. The learned counsel would place reliance upon an order passed by a Co-ordinate Bench of this Court in CHRISTY FRIED GRAM INDUSTRY AND OTHERS v.
STATE OF KARNATAKA - Writ Petition No.6225- 9 26/2014 and connected cases decided on 30-10-2015 and in the case of SMT. USHA R.PATWARI v. THE KARNATAKA LOKAYUKTA - Criminal Petition No.816/2014 and connected case decided on 14-09-2016 in support of his submissions. Therefore, the crux of the submission of the learned counsel is, whether the material collected during investigation in Crime No.23/2011 which was for the offence punishable under Section 13(1)(c) and 13(1)(d) read with Section 13(2) of the Act can be made use of for registration of an FIR in Crime No.8/2012 for offences punishable under Section 13(1)(e) read with Section 13(2) of the Act.
10. On the other hand, the learned counsel representing the respondent would vehemently refute these submissions and contends that while investigating into the matter and conducting search against the petitioner in Crime No.23/2011 it also came to light that the petitioner has amassed huge wealth 10 disproportionate to his known source of income.
Therefore, a separate case was registered against the petitioner for offences punishable under Section 13(1)(e) of the Act. Registration of second crime for the offence punishable under Section 13(1)(e) of the Act can be said to be on the materials collected during the investigation in Crime No.23/2011 but that is not the only material relied on for filing the charge sheet in Crime No.8/2012.
He would further submit that the Special Judge while rejecting the application under Section 227 of the Cr.P.C. has categorically held that there was enough material against the petitioner to continue with the trial.
Therefore, he would seek dismissal of the writ petition.
11. The afore-narrated facts are not in dispute.
Crime No.23/2011 was registered against the petitioner on 8-08-2011 for offences punishable under Sections 7, 8 13(1)(c), 13(1)(d) read with Section 13(2) of the Act.
House of the petitioner was searched in furtherance of 11 registration of the said crime. All the materials were collected during investigation for offences punishable under the aforesaid provisions and prosecution came to be launched by filing charge sheet in Crime No.23/2011 which became Special Case No.16/2013. In the said special case the petitioner files a discharge application and the petitioner was discharged by an order of the Special Judge dated 21.11.2014. Be it technicality or otherwise, the petitioner was discharged from the proceedings in Special Case No.16/2013 which arose out of Crime No.23/2011. The said order of discharge has become final.
12. While conducting search, mahazar was drawn and several materials were collected during the search so conducted in Crime No.23/2011. After a lapse of about 9 months, after registration of the said crime, a separate crime is registered on 29-05-2012 in Crime No.8/2012. They were the materials used for 12 registration of the crime for different offences. All the materials that were collected during investigation in Crime No.23/2011 were used to register crime No.8/2012 for offence punishable under Section 13(1)(e) read with Section 13(2) of the Cr.P.C. The entire proceeding in Crime No.23/2011 is lock, stock and barrel concluded by the order of discharge of the petitioner.
13. After the discharge the respondent has now filed charge sheet in Crime No.8/2012 on the very same material. It is on this ground the petitioner sought his discharge at the hands of the learned Special Judge in Special Case No.99/2015 arising out of Crime No.8/2012. The learned Special Judge by his order dated 28-05-2016 has rejected the said application seeking discharge. While doing so, the learned Special Judge has observed that the materials collected during investigation concerning Crime No.23/2011 was not the 13 only material that was available with the prosecution.
The said finding, in my considered view, is erroneous in the light of orders passed by Co-ordinate Benches of this Court, in particular, the order passed in the case of SMT.USHA R.PATWARI1 (supra) wherein this Court after considering the entire spectrum of law on the point has held as follows:
"4. In the light of the above contentions and the facts and circumstances, the short point that arises for consideration whether on the basis of alleged incriminating material said to have been unearthed on the search conducted on 9.3.2012 in the houses of each of the petitioners - pursuant to which a case in Crime No.20/2012 was registered. And which was said to have been quashed in proceedings before this court in WP 6225-26/2014 and connected cases by an order dated 30.10.2015, a second FIR against each of the petitioners, in Crime No.28/2012 and Crime No.35/2012, respectively, could be registered for offences punishable under Section 13(1)(e) of the PC Act.
Firstly, if incriminating material had already been found on the search of each of the petitioners' houses as on 9.3.2012, to make out a case for an offence even under Section 13(1)(e), it is inexplicable that the said offence was also not alleged in the case in 1 Crl.P.No.816/2014 and connected dd. 14-09-2016 14 Crime No.20/2012, that was brought against both these petitioners and others. Therefore, if the proceedings initiated in Crime No.20/2012 has been held to be bad for reasons stated already, the subsequent proceedings in Crime No..28/2012 and 35/2012 would suffer from the same lacunae. The intervening order of the Superintendent of Police directing an investigation and the preparation of a source report by the Deputy Superintendent and the filing of FIRs subsequently are a mere 'smoke screen' to create an off-shoot pursuant to the search conducted on 9.3.2012. It is also to be kept in view that it was not merely the search which was held to be illegal, it was the very lodging of the FIR, after having conducted substantial investigation and a search and seizure that was held to be bad. Hence, the subsequent FIRs filed in Crime No.28/2012 and 35/2012 are also to be held as being bad in law.
Accordingly, the writ petitions are allowed. The impugned proceedings initiated against the petitioners are hereby quashed."
The Co-ordinate Bench has clearly held that the material collected for an earlier crime cannot be made use for different offence. The Co-ordinate Bench was following the order of another Co-ordinate Bench in the case of L.SHANKARAMURTHY AND OTHERS v. THE 15 STATE BY LOKAYUKTA POLICE2 wherein this Court has held as follows:
"20. In the light of the aforesaid contentions put forward, whether the petitioners have made out a case for this Court to interfere under Section 482 of the Cr. P.C. is the point for consideration.
21. From the material that is placed at this juncture and the facts admitted by both sides, it is clear that in all these cases, there was no complaint lodged by any one with the police and secondly, the F.I. Rs. came to be registered under Section 154 of the Cr. P.C. on the basis of the seizure panchanamas drawn in each one of the cases. The further admitted fact is that, in all these cases, seizure panchanamas drawn make no mention whatsoever about the petitioners having either demanded or accepted the bribe amount. The amount said to have been recovered from the possession of the petitioners, who are the Sub-Registrars, also is not the bribe amount, even as per the seizure panchanamas and the said amount was returned to the petitioners as it was found to be there own personal amount. Another fact, which is not in dispute, is that, before conducting the seizure panchanamas, no case was registered by the police. In the face of such admitted facts, whether this Court can interfere under Section 482 of the Cr. P.C. is to be examined.
23. Insofar as the petitioners' cases are concerned, the F.I. Rs. registered under Section 2 (2012)5 K.L.J 545 16 154 of the Cr. P.C., except mentioning the Sections of the P.C. Act viz., Sections 8 and 13(1)(d) read with Section 13(2), do not mention anything about the petitioners nor is there anything in the F.I. Rs. indicating the necessary ingredients of the aforesaid sections and no allegations whatsoever are there in the F.I.R.
24. As far as complaints are concerned, though the F.I. Rs. have got the endorsement that they were received with the original complaints, no complaint whatsoever is annexed to the F.I. Rs. Even as per the submission made by the learned Counsel for the respondent-Lokayuktha, no information was received by the concerned Police Officer from any person nor was there any complaint lodged with the Police Officer and no complaint as such was also lodged by the officer concerned. The submission of the learned Counsel for the respondent-Lokayuktha that the panchanama itself is the complaint cannot be accepted by any stretch of imagination.
25. In the absence of the F.I. Rs.
mentioning any allegation whatsoever nor is there any material prima facie constituting any of the offences under the P.C. Act being made out from a bare reading of the F.I. Rs. category (1) mentioned in Bhajan Lal's case, therefore, gets attracted with all force.
26. Whether the requirement of Section 154 of the Cr. P.C. has been satisfied in all these cases is the next point for consideration. A plain reading of Section 154(1) of the Cr. P.C. makes it clear that in respect of the information 17 relating to commission of a cognizable offence, that information received orally requires to be reduced into writing and if the information is given in writing, then, the Police Officer in charge of the police station shall have to enter that in a book kept by such officer in such form and only thereafter, investigation can be taken up.
27. The Apex Court, in the aforementioned Bhajan Lal's case, has dealt in great detail about the requirement of a case being registered in respect of a cognizable offence and taking up the investigation thereon. The relevant paragraphs for our purpose are paragraphs 30, 31, 32 and 33, which are reproduced hereunder:
"30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" (as defined under Section 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to "an officer incharge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" and which act of entering the information in the said form is known as registration of a crime or a case.
31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the 18 Code, the concerned Police Officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section
157. (As we have proposed to make a detailed discussion about the power of a Police Officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.19
32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or 41(1)(g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non- qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and 41(1)(g) of the Code may be for the reason that the Police Officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words "reasonableness" or "credibility" of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that "every complaint or information"
preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that "every complaint" preferred to an officer in charge of a police station shall be reduced in writing.
The word "complaint" which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 20 "information" was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(1)(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said Police Officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information".
28. In the case of Ramesh Kumari, the Apex Court has held that the provision of Section 154 is mandatory and the Police Officer concerned is duty-bound to register the case on receiving the information disclosing cognizable office and the Court went on to observe that the genuineness or credibility of the information is not a condition precedent for registration of a case and that can only be considered after registration of the case. After referring to the observations made in Bhajan Lal's case in paragraphs 31, 32 and 33, in the case under discussion, the Apex Court has observed at paragraph 4 that a Police Officer mandatorily has to register a case on a complaint of cognizable offence by the 21 citizen under Section 154 of the Code and that position is no more res Integra. At paragraph 5, the Apex Court has gone on to observe thus:
"5. The views expressed by this Court in paras 31, 32 and 33 as quoted above leave no manners of doubt that the provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of such an information disclosing cognizable offence".
29. Again, the very same principles were reiterated by the Apex Court in the case of Lallan Chaudhary, wherein, after referring to the decision in Ramesh Kumari's case, it was held thus at paragraphs 8, 9 and 10:
"8. Section 154 of the Code thus casts a statutory duty upon the Police Officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such Police Officer has no other option except to register the case on the basis of such information.
9. In Ramesh Kumari v. State (NCT of Delhi), (2006) 2 SCC 677 : (2006) 1 SCC (Cri) 678, this Court has held that the provision of Section 154 is mandatory.
Hence, the Police Officer concerned is 22 duty-bound to register the case on the receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case.
10. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the Police Officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of th
30. In the case of Ashok Kumar Todi, the Apex Court has considered the definition of "investigation" as defined under Section 2(h) of the Code and went on to observe thus at paragraph 48:
"48. Under the scheme of the Code, investigation commences with lodgment of information relating to the commission of an offence. If it is a cognizable offence, the offence in charge of the police station, to whom the information is supplied orally has a 23 statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the State in that behalf. The officer-in-charge has no escape from doing so if the offence mentioned therein is a cognizable offence and whether or not such offence was committed within the limits of that police station. But when the offence is non-cognizable, the officer in charge of the police station has no obligation to record it if the offence was not committed within the limits of his police station. Investigation thereafter would commence and the Investigating Officer has to go step by step".
31. It is, therefore, clear from the aforesaid principle laid down by the Apex Court that in respect of a cognizable offence, the officer in charge is duty-bound to reduce the information received by him to writing and then has to register the case and thereafter can proceed with the investigation and he has no other option open to him. Therefore, the Police Officer in charge is duty-bound to comply with the mandatory requirement of Section 154 of the Cr. P.C.
32. In the cases of the present petitioners, there has been no such compliance of the mandatory provision of law as contained in Section 154 of the Cr. P.C. and the seizure 24 panchanama cannot take the place of complaint or information. Thus, it is clear that the procedure followed by the Police Officer concerned is contrary to the mandatory provisions as contained in Section 154 of the Cr. P.C.
33. The scheme of the Cr. P.C. also makes it clear that, Section 157 of the Cr. P.C. gives power to the Police Officer to take up investigation only after sending a report to the Magistrate, and power to take cognizance of such offence where the officer concerned, from the information received or otherwise, has reason to suspect the commission of an offence which he is empowered to investigate under Section 156 of the Cr. P.C. he shall follow the requirement of Section 157 before embarking upon the investigation. It is, therefore, clear from the aforesaid provisions of the Cr. P.C. that the Police Officer concerned cannot proceed with the investigation without first registering the case upon the information received by him.
34. This Court, in the case of Mahadevappa, has also taken the view that the Lokayuktha police have got suo motu power to initiate proceeding, but in view of Section 157 of the Cr. P.C., the Police Officer can press the law into motion not only on the basis of the information received by him but also otherwise.
35. In the light of the aforesaid position in the law laid down by the Apex Court in particular in the aforementioned cases, the entire proceeding leading to conducting the seizure panchanama even without registering 25 the cases as required under Section 154 of the Cr. P.C. is illegal, contrary to law and is in violation of the mandatory provisions of the Cr. P.C. and the act on the part of the Police Officer concerned is nothing but an act which could be termed as abuse of the process of law.
36. Though on the aforesaid ground alone the proceedings against the petitioners are liable to be quashed, yet, in view of the law laid down by the Apex Court in Bhajan Lal's case, I have also examined the material at least to satisfy as to whether there are prima facie allegations made out against the petitioners in respect of any one of the offences under the P.C. Act.
37. Section 8 of the P.C. Act refers to the situation where the person accepting or agreeing to accept or obtains or attempts to obtain from any person for himself or for any other person any gratification as motive or reward for inducing by corrupt or illegal means any public servant to do or forbear to do any official act or to show favour or disfavour to any person and in such an event, only Section 8 comes into play.
38. In the case on hand, at the cost of repetition, it has to be mentioned that no complaint whatsoever is on record alleging the commission of the offence under Section 8 of the P.C. Act and none of the ingredients of Section 8 are to be found in the F.I. Rs. Therefore, mere mention of Section 8 in the F.I. Rs. without there being even the prima facie material to make out 26 such an offence, therefore, cannot give rise to take the view that there is prima facie material to attract Section 8 of the Act. When the F.I. Rs. are totally silent with regard to the allegations of the nature required by Section 8, the question of there being any allegations attracting the offence under Section 8, therefore, does not and cannot arise. For the very same reasons, there is no material at this stage to show that the complaint allegations or the F.I.R. allegations make out a case to attract Section 13(1)(d) of the P.C. Act. On the other hand, the seizure panchanamas indicate that the respective Sub- Registrars were found in possession of their personal money and the said amount was returned to them. There is also no material placed to show that the respective petitioners received any illegal gratification either for themselves or for any other person.
39. Thus, the F.I.Rs. and the panchanamas taken together do not make out any of the allegations to bring the cases within the ambit of Sections 8 and 13(1)(d) read with Section 13(2) of the P.C. Act. Added to this, the F.I. Rs. as well as the seizure panchanamas do not mention anywhere that the petitioners had demanded any bribe amount from any person nor is there any mention that the petitioners had received or accepted the bribe amounts and that the said bribe amounts were recovered from their possession. Therefore, when there is no allegation of either demand of bribe amount or acceptance of the same by the respective petitioners from any person, the question of any of the offences under the P.C. Act getting attracted, therefore, does not arise.
2740. Now, coming to the bar contained in Section 19(3Xc) of the P.C. Act, the learned Counsel for the respondent-Lokayuktha is right in submitting that the proceedings under the P.C. Act cannot be stayed by any Court. The Apex Court has also laid down the law in the case of Satya Narayan Sharma, that there can be no stay of trial of public servant of corruption charges and this would also be applicable to the High Court where it exercises jurisdiction under Section 482 of the Cr. P.C. The same principle is also laid down by this Court in the case of Govindaraju as well as in Criminal Petition No. 5010 of 2010 and batch of cases.
41. The aforesaid decisions referred to by the learned Counsel for the respondent- Lokayuktha have no application to the cases on hand as the allegations in the F.I. Rs. do not make out any offence whatsoever under the P.C. Act. None of the ingredients of Sections 8 and 13(1)(d) are to be found in the F.I. Rs. since the seizure panchanamas were drawn even prior to the cases being registered and the said proceedings are illegal and cannot be looked into.
42. At the same time, it has to be mentioned that the Apex Court has observed in the case of Satya Narayan Sharma, referred to earlier, that while in cases under the P.C. Act there could be no stay of trial, the Court went on to further make out clear at paragraph-26 thus:
"26...... We clarify that we are not saying that the proceedings under Section 482 of the Cr. P.C. cannot be adapted. In appropriate cases, 28 the proceedings under Section 482 can be adapted.....".
43. The present cases are the ones which fall under appropriate cases for the reasons mentioned earlier. This Court, in the case of Thottkat Kunjiram Madhav, has held that where the search conducted is an abuse of the process of law, it is one such rarest of rare cases which warrants interference by the Court in view of the Apex Court's observations in Bhajan Lal's case. In the case under consideration, this Court has held that the illegal act of the Police Officer in attempting to enter the premises of the petitioner without an order of the Court has caused damage to the reputation of the petitioner and the Court then went on to impose cost on the third respondent before it.
44. The cases on hand are also clear examples or illustrations of the abuse of the process of law and the Police Officer concerned has totally disregarded the mandatory provisions of Section 154 of the Cr. P.C. and before registering the cases has proceeded to the spot, conducted personal check of the petitioners and the petitioners were then arrested and brought to the police station and after all these events, cases were registered.
45. Though it was brought to the notice of this Court a recent decision of the Apex Court in the case of Daljit Singh Grewal v. Ramesh Inder Singh [(2012) 2 SCC (Cri) 2] , to point out that the question as to whether registration of the F.I.R. is mandatory or not and whether the 29 police has discretion to conduct preliminary enquiry before registering the F.I.R. has been referred by the Apex Court for clear enunciation of law and adjudication by a Larger Bench, as of now, the settled position in law is registering the case upon the information received is sine qua non before proceeding to take up the investigation.
46. Thus, the entire procedure followed by the concerned Police Officer is an abuse of the process of law and, therefore, I have no hesitation in agreeing with the contentions put forward by the learned Counsel for the petitioners that these cases are fit enough to be brought within the rarest of rare cases and in order to prevent abuse of the process of law and to meet the ends of justice, exercise of inherent power conferred under Section 482 of the Cr. P.C. therefore, becomes imperative and inevitable."
(Emphasis Supplied) The Division Bench in the case of GIRISHCHANDRA V. THE STATE BY LOKAYUKTHA POLICE3, has held as follows:
"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 3 ILR 2013 KAR 983 30 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."
(Emphasis Supplied) In the light of the judgment rendered by the Co-ordinate Bench and that of the Division Bench, the procedure adopted by the prosecution in the case at hand would be rendered unsustainable.
14. The aforementioned order in the case of L.SHANKARAMURTHY was challenged by the Lokayukta Police before the Apex Court. The Apex Court has dismissed the S.L.P. declining to interfere with the order passed by this Court. Therefore, the finding 31 rendered or the law declared by this Court in the case of L.SHANKARAMURTHY becomes binding as it is not disturbed by the Apex Court in the S.L.P. that was filed by the respondent.
15. The facts of the case at hand are not in dispute. There is no FIR registered prior to conduct of investigation in Crime No.8/2012. While conducting investigation in Crime No.23/2011 the respondent claims to have found several materials and then registered an FIR in Crime No.8/2012. Therefore, it is a clear case where the FIR is registered after the search and source report being generated in Crime No.23/2011. This is what is held by the Co-ordinate Bench of this Court to be erroneous in the case of L.SHANKARAMURTHY and in the case of SMT.USHA R. PATWARI (supra). On the undisputed facts narrated hereinabove and the orders in the cases of L.SHANKARAMURTHY and SMT.USHA R. PATWARI 32 which were rendered in identical circumstances, the subject writ petition deserves to succeed.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) The impugned proceedings in Special Case No.99/2015 before the Principal Sessions Judge and Special Judge, Bengaluru Rural District stand quashed.
Sd/-
JUDGE bkp CT:MJ