Karnataka High Court
Mr Rehman Roshan Baig vs State Of Karnataka on 3 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3rd DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.4028 OF 2018
BETWEEN:
1. MR REHMAN ROSHAN BAIG
SON OF A R BAIG
AGED ABOUT 65 YEARS
2. MRS SABIHA ROSHAN @ SABHIHA FATHIMA
WIFE OF REHMAN ROSHAN BAIG
AGED ABOUT 58 YEARS
3. MR RUMAN BAIG REHMAN
SON OF ROSHAN BAIG
AGED ABOUT 31 YEARS
ALL ARE RESIDING AT NO.4/1
SAUNDERS ROAD
FRAZER TOWN
BENGALURU 560005
...PETITIONERS
(BY SRI: RAVI B.NAIK, SENIOR ADVOCATE FOR
SRI: SHAMANTH NAIK, ADVOCATE )
AND:
1. STATE OF KARNATAKA
BY LOKAYUTHA POLICE
M S BUILDING
2
BENGALURU 560001
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
2. ABDUL HAQ SURATHI
SINCE DECEASED REPRESENTED
BY HIS LEGAL REPRESENTATIVE
2a. ABDUL JABBAS NIZZAMUDDIN
NO.26, SLAUGHTER HOUSE ROAD,
"B" STREET, SHIVAJINAGAR
BANGALORE 560051
(AMENDED BY ORDER DATED 22.10.2020)
...RESPONDENTS
(BY SRI: VENKATESH S ARBATTI, SPECIAL PP FOR R1;
SRI: M.V. VEDACHALA, ADVOCATE FOR LR's OF R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ALL FURTHER PROCEEDINGS,
COMPLAINT AND FIR IN P.C.R.NO.34/2012, PENDING BEFORE
THE LXXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 22.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
Initially, this petition was filed under Section 482 of Cr.P.C. seeking to quash the PCR No.34/2012(FIR in Cr.No.66/2012) and entire proceedings in Spl.C.C.No.341/2018 pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru(Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka). Subseqently, by way of amendment, the petitioners have sought to quash the order dated 12.07.2012 passed by learned Special Judge referring the complaint for investigation under section 156(3) Cr.P.C. and also the order dated 05.05.2018 taking cognizance and issuing summons to the petitioners.
2. The outline facts of the case are as follows:-
Respondent No.2 presented a private complaint under section 200 Cr.P.C. seeking action against the petitioners for the alleged offences punishable under sections 167, 409, 415, 420 IPC and section 13(1) (c), (d) and (e) of Prevention of Corruption Act, 1988. It was numbered as PCR No.34/2012. The 4 learned Special Judge by order dated 12.07.2012 referred the complaint to Superintendent of Police, Karnataka Lokayukta, Bangalore Urban for investigation under section 156(3) Cr.P.C. Accordingly, the FIR in Cr.No.66/2012 was registered against the petitioners. After investigation, 'B' summary report was submitted before the Court on 10.01.2014. On 14.07.2014, the complainant sought time to give his sworn statement. Accordingly, the matter was adjourned for recording the sworn statement of the complainant. However, on 18.11.2014, when the matter was taken up, the complainant filed his reply as protest petition to the report dated 17.05.2014 and the counsel representing the complainant made a submission that appropriate order be passed as the complainant has nothing more to submit and that he does not choose to give sworn statement. Learned Special Judge by order dated 05.05.2018 accepted the report submitted by the Investigating Officer and took cognisance of the offences against accused Nos.2 and 3 in respect of offences punishable under section 409, 420 IPC and sections 13(1) (c), 13(1) (d) and 13(1) (e) r/w 13(2) of IPC. However, insofar as petitioner No.1/accused No.1 is concerned, 5 he being an elected MLA from Shivajinagar constituency and cabinet minister in the Government of Karnataka, the learned Special Judge directed the Investigating Officer to submit copy of the investigation report before the competent authority and to seek for sanction for prosecution of accused No.1 and to submit his report.
3. The aforesaid order dated 12.07.2012 and the entire proceedings pending on the file of learned Special Judge including the order of reference and the order of cognizance are challenged in this petition mainly on the ground that the procedure followed by the learned Special Judge is not in accordance with law; the learned Special Judge has failed to follow the procedure contemplated in sections 202 and 204 Cr.P.C; the sworn statement of respondent No.2/complainant was not recorded before issuing process to accused Nos.2 and 3; the list of witnesses was not filed alongwith the complaint; the order of reference under section 156(3) Cr.P.C. is not a speaking order and the same is opposed to the law laid down by this Court as well as by the Hon'ble Supreme Court of India; the reasons 6 assigned by the learned Special Judge to reject the 'B' summary report is contrary to the material collected by the investing agency which prima-facie disclose that the disproportionate assets found in the possession of the petitioners were less than 10%. Under the said circumstances, in view of the law laid down by the Hon'ble Supreme Court in KRISHANAND AGNIHOTRI v. THE STATE OF MADHYA PRADESH, (1977) 1 SCC 816, the learned Special Judge has committed an error in reversing the opinion of the Investigating Officer. Further it is contended that the learned Special Judge having not taken cognizance of the offence against public servant for want of sanction, could not have proceeded against accused Nos.2 and 3 who are the private parties on the ground that they abetted the offences committed by the Public servant. When the learned Special Judge has failed to take cognizance of the main offence issuance of summons to the petitioner Nos.2 and 3 is bad in law and contrary to the procedure contemplated under the Code and the law laid down by this Court and the Hon'ble Apex Court of India. 7
4. Learned Special Public Prosecutor appearing for respondent No.1- State however argued in support of the impugned order contending that the order passed by the learned Special Judge is in accordance with sections 190 and 200 Cr.P.C. The guidelines to be followed in accepting or rejecting the 'B' summary report are laid down by this Court in DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER, ILR 2018 KAR 1725. The trial court has meticulously followed these principles and therefore there is no error or infirmity in the procedure followed by the learned Special Judge.
5. Insofar as the requirement of sanction for prosecution of accused No.1 is concerned, the learned Special Public Prosecutor would submit that petitioner No.1/accused No.1 was not holding the same office as on the date of registration of FIR and on the date of taking cognizance and therefore prior sanction is not necessary for prosecution of the first petitioner and therefore to that extent, the learned Special Judge having committed an error, the same be rectified by this Court as prima-facie material is available to show that disproportionate assets found in the 8 possession of the petitioners during the check period amounted to Rs.56,71,153/-. Learned Special Public Prosecutor would submit that the decision in Krishnanand Agnihotri does not lay down any proposition of law that in all cases where the disproportionate assets are less than 10% of the total assets, the accused are not entitled to be prosecuted for the alleged offences.
6. In the light of these contentions, the points that arise for consideration are:
1. Whether the order of issuance of summons to the petitioners is bad for non-compliance of the procedure contemplated under the Code?
2. Whether in the facts and circumstances of the case prior sanction is necessary for prosecution of Accused No.1?
3. Whether the impugned proceedings are liable to be quashed?9
All the three points are taken up for consideration together.
7. Insofar as the procedure to be followed by the learned Magistrate or the Court in accepting or rejecting the 'B' summary report and taking cognizance of the offence is concerned, following the decision in Kamalapati Trivedi v. State of West Bengal', (1980) SCC (2) 91, this Court in 'Dr. Ravi Kumar v. Mrs. K.M.C. Vasantha and Another', ILR 2018 KAR 1725, has enumerated the guidelines to be followed by the courts and the Magistrate dealing with the 'B' summary report as under:-
"5. xxxxxxxxxxxxxxxx It is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-10
i) "The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.P.C, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon'ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.11
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C."
8. In a recent decision in Vishnu Kumar Tiwari v. State of Uttar Pradesh through Secretary, Home Civil Secretariat, Lucknow and Another, (2019) 8 SCC 27, the Hon'ble Supreme Court has reiterated that mere fact that the magistrate had 12 earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and
204. It is held in this decision that 1) a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (a) he may decide that there is no sufficient ground for proceeding further and drop action;
(b) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (c) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be." 13
9. In the instant case, the learned Magistrate initially posted the case for recording the sworn statement of the complainant, but later, on the submission of the complainant, considered the 'B' summary report and by the impugned order took cognizance of the offences under section 190(1)(b) of the Code and issued summons to accused Nos.2 and 3.
10. It is evident from the impugned order that the learned Special Judge has adopted the second option available to him, as the material on record clearly disclosed the commission of the offences by the accused. Learned Special Judge has considered the income and expenditure of accused No.1 as against the total value of the properties held by him and the other accused persons for and on his behalf and has recorded that as per the final report and the documents filed along with the report, the disproportionate assets held by the accused amounted to Rs.56,71,153.64/-. This finding is supported by the documents referred in the final report. As such, prima-facie case is made out to proceed against the petitioners. But contrary to these facts, the investigating officer having submitted a 'B' report by forming 14 an opinion based on the decision in Krishnanand Agnihotri v. The State of Madhya Pradesh, (1977) (1) SCC 816, the learned Special Judge found it proper to reject the 'B' summary report and take cognizance of the offences against the petitioners for the above offences.
11. The order passed by the learned Special Judge dated 05.05.2018 is a speaking order wherein the learned Special Judge has assigned cogent reasons to reject the 'B' summary report and only thereafter he has formed an opinion based on the material produced alongwith the final report and has issued process to accused Nos.2 and 3. This procedure is in accordance with the law laid down in the decisions referred supra. However, insofar as the direction issued by the learned Special Judge to secure sanction for prosecution of accused No.1 is concerned, having regard to the law laid down in L. Narayanaswamy v. State of Karnataka & Others, AIR 2016 SC 4125, this direction cannot be sustained. As laid down in the above decision, petitioner No.1 having ceased to hold the same office which he held as public servant at the time of commission of offence, 15 sanction for prosecution of accused No.1 is not necessary. To this extent, the order passed by the learned Special Judge deferring cognizance insofar as petitioner No.1 is concerned may call for interference. But the rest of the order does not suffer from any error or illegality warranting interference under Section 482 Cr.P.C.
12. As the material produced alongwith the final report clearly make out the ingredients of offences under section 13(1) (d) and (e) of P.C. Act and there being reliable material to show the alleged offences were committed by petitioner No.1 with the aid and assistance of petitioner Nos.2 and 3, the learned Special Judge was justified in taking cognizance of the above offences against accused Nos.2 and 3 and issuing summons to them. For the said reasons, the contentions urged by learned Senior Counsel for the petitioners in this regard are liable to be rejected and are accordingly rejected.
13. It needs to be stated that the purpose of submission of report with details as mentioned in sub-section (2) of section 173 of Cr.P.C. is to enable the magistrate to satisfy whether on 16 the basis of the report and the material filed alongwith it, a case for taking cognizance has been made out or not. He is not bound by the opinion or conclusion of the Investigating Officer. If the report and the material filed therewith satisfies the magistrate that a cognizable case has been made out, it is open for the learned magistrate to take cognizance of the offences and issue process to the petitioners.
14. The jurisdiction of the magistrate to reject the 'B' summary report and to take cognizance of the offences is not fettered by the opinion or conclusion of the Investigating Officer. No-doubt, 'investigation' within the meaning of section 173(2) of Cr.P.C. also includes the opinion of the Officer incharge of the police station. But the opinion of the police officer is not a legal evidence. The duty of the Investigating Officer is only to collect the evidence and submit a report to the Court with the various details prescribed in section 173(2) of Cr.P.C. As held in the Constitution Bench decision in K. Veeraswami v. Union of India and others, 1991(3), SC 655, "this report is an intimation to the magistrate that upon investigation into a cognizable offence, the 17 investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court."
15. From the above proposition, it is clear that it is the duty of the Court to enquire into whether cognizable offence is disclosed from the material produced before it. On considering the report filed by the Investigating Officer in the instant case and on considering the findings recorded by the Investigating Officer, based on the evidence collected by him during the course of investigation, the learned Special Judge having found that cognizable case has been made out and consequently having issued process to the petitioners, no fault could be found with the impugned order.
16. From the reading of the 'B' summary report, it is seen that the Investigating Officer filed 'B' summary report on the erroneous understanding of law that possession of disproportionate assets within 10% of the total income do not qualify as disproportionate assets. In arriving at this opinion, the Investigating Officer appears to have relied on the case decided 18 by the Hon'ble Supreme Court in Krishnanand Agnihotri v. The State of Madhya Pradesh, (1977) (1) SCC 816. This decision does not lay down any invariable rule that in all cases, if the disproportionate assets possessed by the accused are less than 10% of the total income, the offence is not made out. In the said case, considering the quantum of total assets and the income of the accused, the Hon'ble Supreme Court found that the difference between the total income and the disproportionate assets being less than 10%, he could be exonerated of the said offence. But in the instant case, the disproportionate assets as per the report submitted by the Investigating Officer is more than 10% of the total assets of the petitioners. Even otherwise, as already discussed above, the magistrate is not bound by the opinion of the Investigating Officer. Since the Investigating Officer has failed to apply the correct principles of law to the facts of the case, the learned Special Judge was justified in rejecting the 'B' summary report and therefore, I do not find any merit or substance in the argument canvassed by learned Senior Counsel for the petitioners. As a result, the contention urged by learned counsel for the petitioners are liable to be rejected. 19 However, as the trial court has failed to take cognizance of the offences, insofar as petitioner No.1 is concerned on the erroneous understanding of law that prior sanction is necessary for the prosecution of petitioner No.1, the impugned order to that extent is set aside. It is held that sanction for prosecution of petitioner No.1/accused No.1 is not necessary. Accordingly, the matter is remitted to the Special Court to take cognizance of the alleged offences against accused No.1 and to proceed in accordance with law.
The legal and factual contentions urged by the petitioners are rejected.
Petition stands disposed of in terms of the above order.
SD/-
JUDGE *mn/-