Karnataka High Court
Sri. K.L. Gangadharaiah vs The Karnataka Lokayuktha Police on 28 July, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2023 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.11822 OF 2023 (GM - RES)
BETWEEN:
SRI K.L.GANGADHARAIAH
S/O LATE M.LINGAIAH
AGED ABOUT 47 YEARS
ASSISTANT EXECUTIVE ENGINEER (PWD)
WORKING AS ASSISTANT DIRECTOR
OFFICE OF THE ASSISTANT DIRECTOR
OF TOWN PLANNING
YALAHANKA, BENGALURU.
R/AT NO.83, 3RD MAIN
SATHYANARAYANA LAYOUT
MAHALAKSHMIPURAM
BENGALURU - 560 083.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SRI SHARATH S.GOWDA, ADVOCATE)
AND:
THE KARNATAKA LOKAYUKTHA POLICE
REPRESENTED BY ITS
DEPUTY SUPERINTENDENT OF POLICE
CITY DIVISION
KARNATAKA LOKAYUKTHA
2
M.S.BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI B.B.PATIL, SPL.PP FOR THE RESPONDENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR DTD 21.4.2023, IN CRIME
NO.20/2023 REGISTERED BY THE R-1 (ANNX-A) AND
CONSEQUENTLY, QUASH THE SOURCE INFORMATION REPORT DTD
21.4.2023, PREPARED BY THE RESPONDENT POLICE (ANNX-B),
AND ALL FURTHER PROCEEDINGS PURSUANT THERETO, IN SO FAR
AS THE PETITIONER IS CONCERNED, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.07.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question registration of crime in Crime No.20 of 2023 registered by the Karnataka Lokayukta Police under Sections 12, 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short) and has consequently sought quashment of entire source information report of the Lokayukta which led to registration of crime. 3
2. Facts, in brief, germane are as follows:
The petitioner is an employee of the Public Works Department having joined the said Department as Assistant Engineer. In the year 2011, he was promoted to the cadre of Assistant Executive Engineer and presently functioning as Assistant Director of Town Planning, Yelahanka Zone, Bangalore. On 21-04-2023 the respondent - Police wing of the Lokayukta registers a crime on the basis of source information report in Crime No.20 of 2023 for offences punishable under Sections 12, 13(1)(b) and 13(2) of the Act. Based upon the said source information report, on 24-04-2023 in wee hours of the morning, the Police conduct a raid on the house of the petitioner and draw up a seizure panchanama and all other necessary things for it to be in accordance with law. The petitioner, the moment search takes place and registration of crime thereto, is before this Court calling in question registration of crime, which was on the basis of source information report. Since no further proceedings have happened, the issue now lies in a narrow compass with regard to the challenge to source information report and resultant registration of crime.4
3. Heard Sri Sandesh J Chouta, learned senior counsel for the petitioner and Sri B.B. Patil, learned Special Public Prosecutor for the respondent.
4. The learned senior counsel for petitioner would vehemently contend that the source information report is prepared in a mortal hurry on 21-04-2023. The crime is also registered on the same day and search is conducted on 24-04-2023 based upon the so registered source information report which becomes foundation of the crime. It is his submission that there is blatant violation of Section 17 of the Act which mandates application of mind and an order being passed by the Competent Authority to register the crime. He would take this Court through the statement of objections so filed by the Lokayukta to contend that there is gross variance with the orders that are passed permitting registration of crime with the orders that are generally passed permitting registration of crime. It is his submission that it is an anti-dated order that is placed before this Court. He would seek quashment of entire 5 proceedings by relying on the law laid down by the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL1.
5. On the other hand, the learned counsel representing the Lokayukta would vehemently refute the submissions and take this Court through the very statement of objections so filed contending that the petitioner who is now charged of amassing wealth disproportionate to the known sources of income should not be shown indulgence on these trivialities with regard to drawing up of source information report or registration of crime. It is for the petitioner to urge all these grounds in a full blown trial. If he is able to satisfy that assets are not disproportionate to his known sources of income he would as well be acquitted of the offences. With regard to the contention of the learned senior counsel for the petitioner that it is an anti dated order, he has produced original records pertaining to the case of the petitioner which led to registration of crime.
1 1992 Supp (1) SCC 335.
6
6. The learned senior counsel would now join the issue to contend that the petitioner has filed a rejoinder to the statement of objections which would clearly demonstrate that it is an afterthought of preparation of an order under Section 17 of the Act, as the order which is appended to the petition clearly demonstrates that there was no sanction by the Superintendent of Police under Section 17 of the Act in the crime so registered. He would submit that the office of Lokayukta has grossly erred in registration of crime against several people.
7. The afore-narrated facts are not in dispute as they lie in a very narrow compass. The issue in the lis does not concern facts of the matter, but a point in law. The First Information Report against the petitioner is registered on 21-04-2023. This is said to be based upon a source information report drawn against the petitioner which is also dated 21-04-2023 which depicts that the source information report is received along with an endorsement of the Superintendent of Police-2, Lokayukta at 4.30 p.m. and the crime is registered immediately thereafter. The indication in the source information report with regard to registration of crime reads as follows: 7
"ªÉÄîÌAqÀAvÉ ¸ÀA±ÀAiÀiÁ¸ÀàzÀ C¢üPÁjAiÀiÁzÀ ²æà PÉ.J¯ï.UÀAUÁzsÀgÀAiÀÄå gÀªÀgÄÀ CPÀæªÀĪÁV vÀªÀÄä ¥Àwß ªÀĪÀÄvÁzÉë gÀªÀgÀ ºÉ¸Àj£À°è ±ÉÃPÀqÁ 148.58 CAzÁdÄ C¸ÀªÀÄvÉÆî£ÀªÁzÀ D¹ÛUÀ¼À£ÀÄß ºÉÆA¢gÀĪÀÅzÀÄ ªÉÄïÉÆßÃlPÉÌ PÀAqÀÄ §gÀÄwÛzÀÄÝ, EzÉà C®èzÉà CªÀgÀÄ vÀªÀÄä ¸ÀA§A¢üPÀgÀ, ¥ÀwßAiÀÄ ¸ÀA§A¢üPÀgÀ ºÁUÀÆ PÉ®ªÀÅ ¸ÉßûvÀgÀ ºÉ¸Àj£À°è ¨ÉãÁ«ÄAiÀiÁVAiÀÄÆ ¸ÀºÀ D¹ÛAiÀÄ£ÀÄß ºÉÆA¢gÀ§ºÀÄzÁzÀ §®ªÁzÀ ¸ÀA±ÀAiÀÄ«gÀĪÀ PÁgÀt ªÉÄîÌAqÀ £ËPÀgÀ£À «gÀÄzÀÝ ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉƼÀî®Ä PÉÆÃgÀÄvÉÛãÉ.
ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ vÀªÀÄä «zsÉÃAiÀÄ ¸À»/-
(PÀĪÀiÁgÀ¸Áé«Ä ©.f) ¥Éưøï E£Éì÷àPÀÖgï-15.
DySP-05 Complain has been verified discretely. Register FIR and take up investigation.
Sd/-21/04/2023 Received the source report along with the endorsement of SP-2, KLa Bangalore city on 21/4/2023 at 4.30pm and registered case vide crime No.20/2023 u/s 12, 13(1)(b) r/w 13(2) of P.C.Act 1988.
21/04/2023 Deputy Superintendent of Police 5 City_Division, Karnataka Lokayukta Bangalore"
The permission granted by the Deputy Superintendent of Police is 'complaint has been verified discretely. Register FIR and take up investigation'. Therefore, the source information report is prepared on 21-04-2023. The Deputy Superintendent of Police is given source information report which is in the form of a complaint and it 8 is recorded that it is discretely verified and FIR is directed to be registered. Therefore, application of mind of the Deputy Superintendent of Police on the source information report is only what is indicated hereinabove.
8. It is the contention of the learned senior counsel that source information report contains several glorified items which cannot even touch upon the petitioner - salary of the petitioner is not taken to its complete value, loans that are raised from house building societies are taken as income and so on and so forth, all to buttress the submission that the source information report does bear no application of mind as it is prepared in a jiffy. To consider the submission of the learned senior counsel for the petitioner, it is germane to notice Section 17 of the Act. Section 17 of the Act reads as follows:
"17. Persons authorised to investigate.-- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,--
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-9
section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefor without a warrant:
PROVIDED that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
PROVIDED FURTHER that an offence referred to in clause
(b) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police."
(Emphasis supplied) Section 17 begins with a non-obstante clause reading notwithstanding anything contained in the Code of Criminal Procedure, the Deputy Superintendent of police or a Police Officer of an equivalent rank shall investigate any offence punishable under the Act, provided that if a Police Officer not below the rank of an Inspector of Police is authorized in this behalf he may register the crime and investigate into the matter. Section 17 mandates 10 investigation by a person authorized in this behalf. The investigation in the case at hand is conducted by the Inspector of Police. Therefore, authorization should be from the hands of the Deputy Superintendent of Police. The second proviso to Section 17 provides that an offence referred to in clause (b) of sub-section (1) of Section 13 cannot be investigated without the order of a Police Officer not below the rank of a Superintendent of Police. Authorization by a Superintendent of Police in favour of an officer should be to enable him to carry out investigation in terms of Section 17 of the Act. This is the statutory prescription.
9. The power to grant such sanction for registration of crime and investigation is conferred upon the Authority not below the rank of Superintendent of Police. The registration of crime should precede authorization from the Superintendent of Police. In the case at hand, the registration of crime has happened on an endorsement made on the source information report itself. There can be no qualm about such endorsement being made as they are generally made. Whether it is in compliance with Section 17 of the Act is what is required to be noticed. Section 17 had fallen for 11 interpretation in the case of BHAJAN LAL (supra). Certain paragraphs of the said judgment would throw light on this aspect. The Apex Court was interpreting identical provision under the Prevention of Corruption Act, 1947. The Apex Court holds as follows:
"114. Section 5-A(1) of the Act with the relevant provisos reads thus:
5-A. Investigation into cases under this Act.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank, --
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police;
(c) in the presidency town of Bombay, of a Superintendent of Police; and
(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Penal Code, 1860 or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the 12 case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police."
115. Section 5-A of the Act as it originally stood, was inserted by the Prevention of Corruption (Second Amendment) Act 59 of 1952 based on the recommendations of the committee of Members of Parliament under the chairmanship of Dr Bakshi Tek Chand. The said section as it stands now was substituted by Act 40 of 1964, the main object of which is to protect the public servant against harassment and victimisation. (See State of M.P. v. Mubarak Ali [1959 Supp 2 SCR 201 : AIR 1959 SC 707:
1959 Cri LJ 921 : (1960) 1 LLJ 36] ). In A.C. Sharma v. Delhi Administration [(1973) 1 SCC 726 : 1973 SCC (Cri) 608 :
(1973) 3 SCR 477] , Dua, J. said that the scheme of this provision is for effectively achieving the object of successful investigation into the serious offences mentioned in Section 5 of the Act without unreasonably exposing the public servant concerned to frivolous and vexatious proceedings. A Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri) 277 : (1984) 2 SCR 914, 941] at page 941 has observed that "Section 5-A is a safeguard against investigation of offences by public servants, by petty or lower rank police officers".
116. According to Section 5-A, notwithstanding anything contained in the Code, no police officer below the rank specified in clauses (a) to (d) of Section 5-A(1), shall investigate any offence punishable under Section 161, 165 or 165-A of the IPC or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest therefor without a warrant. There are two provisos to that section. As per the first proviso, if a police officer not below the rank of an Inspector of Police is authorised by the State Government, either by general or special order, he may investigate any such offence without the order of a Magistrate or make arrest therefor without a 13 warrant. According to the second proviso, an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
117. It means that a police officer not below the rank of an Inspector of Police authorised by the State Government in terms of the first proviso can take up the investigation of an offence referred to in clause (e) of Section 5(1) only on a separate and independent order of a police officer not below the rank of a Superintendent of Police. To say in other words, a strict compliance of the second proviso is an additional legal requirement to that of the first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression "further provided" occurring in the second proviso.
118. A conjoint reading of the main provision, Section 5-A(1) and the two provisos thereto, shows that the investigation by the designated police officer is the rule and the investigation by an officer of a lower rank is an exception.
119. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud and Inder Singh v. State of Delhi [(1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955 Cri LJ 526] ; (2) Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195 :
AIR 1961 SC 1762: (1961) 2 Cri LJ 828]; (3) Munna Lal v. State of Uttar Pradesh [(1964) 3 SCR 88 : AIR 1964 SC 28: (1964) 1 Cri LJ 11]; (4) S.N. Bose v. State of Bihar [(1968) 3 SCR 563 :
AIR 1968 SC 1292: 1968 Cri LJ 1484]; (5) Muni Lal v. Delhi 14 Administration [(1971) 2 SCC 48: 1971 SCC (Cri) 407] and (6) Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 786 : 1972 SCC (Cri) 854: (1972) 3 SCR 510]. However, in Rishbud case [(1955) 1 SCR 1150 : AIR 1955 SC 196: 1955 Cri LJ 526] and Muni Lal case [(1971) 2 SCC 48: 1971 SCC (Cri) 407] , it has been ruled that if any breach of the said mandatory proviso relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation.
120. Coming to the facts of the present case under consideration, the investigation did not proceed and could not be proceeded with, since the High Court by an interlocutory order restrained the investigation even at the initial stage, i.e. on the date when rule nisi was issued in the writ petition. Therefore, it is the appropriate stage for examination of the question as to whether the necessary requirements contemplated under Section 5-A(1) in permitting the Inspector of Police, are strictly complied with or not.
121. For the proper understanding of the reasoning which we would like to give touching the question of the validity of the authority of appellant 3, we would like to reproduce the Government Order dated July 26, 1975 which reads as follows:
"Haryana Government, Home Department, ORDER No. 4816-3H-75/22965 July 26, 1975 Conferred by the first proviso to sub-section (1) of Section 5-A of the Prevention of Corruption Act, 1947, the Governor of Haryana hereby authorises all the Inspectors of Police under the administrative control of the Inspector General of Police, Haryana to investigate offences under Section 5 of the said Act.
S.D. Bhandari Secretary to Government, Haryana Home Department"
122. The subsequent Government Order dated April 19, 1988 is on the same lines of the above government order. 15
123. On the strength of the above government order of 1975, it has been rightly contended that appellant 3 (Inspector of Police), though not a designated officer has been legally authorised by the State Government in exercise of its powers under the first proviso of Section 5-A(1) to investigate the offences falling under Section 5 of the Act, namely, the offences enumerated in clauses (a) to (e) of Section 5(1) of the Act.
124. Now what remains for consideration is whether there is any valid order of the SP permitting appellant 3 to investigate the offence falling under clause (e) of sub-section (1) of Section 5. As we have already mentioned in the earlier part of this judgment, the SP (appellant 2) has given the one word direction on November 21, 1987 'investigate'. The question is whether the one word direction 'investigate' would amount to an 'order' within the meaning of second proviso of Section 5 2DA(1)."
(Emphasis supplied) Based upon the aforesaid reasons so rendered by the Apex Court both on law and facts obtaining before it, it is held as follows:
"131. From the above discussion, we hold that (1) as the salutary legal requirement of disclosing the reasons for according the permission is not complied with; (2) as the prosecution is not satisfactorily explaining the circumstances which impelled the SP to pass the order directing the SHO to investigate the case; (3) as the said direction manifestly seems to have been granted mechanically and in a very casual manner, regardless of the principles of law enunciated by this Court, probably due to blissful ignorance of the legal mandate and (4) as, above all, the SHO has got neither any order from the Magistrate to investigate the offences under Sections 161 and 165 IPC nor any order from the SP for investigation of the offence under Section 5(1)(e) of the Prevention of Corruption Act in the manner known to law, we have no other option, save to quash that order of direction, reading "investigate" which direction suffers from legal infirmity and also the investigation, if any, so 16 far carried out. Nevertheless, our order of quashing the direction of the SP and the investigation thereupon will not in any way deter appellant 1, the State of Haryana to pursue the matter and direct an investigation afresh in pursuance of the FIR, the quashing of which we have set aside, if the State so desires, through a competent police officer, clothed with the legal authority in strict compliance with Section 5-A(1) of the Act."
(Emphasis supplied) The FIR was quashed only on the ground that authorization to investigate the case has been granted in a very casual manner regardless of the principles of law enunciated by the Apex Court as observed in the previous paragraph of the order. Quashing of the FIR resulted in reserving liberty to the State to act through a competent Police Officer clothed with legal Authority in strict compliance with Section 5-A(1) of the 1947 Act which is akin to Section 17 of the present Act. The Apex Court has further at paragraphs 140 and 141 observes as follows:
"In summation
140. We set aside the judgment of the High Court quashing the first information report as not being legally and factually sustainable in law for the reasons aforementioned; but, however, we quash the commencement as well as the entire investigation, if any, so far done for the reasons given by us in the instant judgment on the ground that appellant 3 (SHO) is not clothed with valid legal authority to take up the investigation and proceed with the same within the meaning of Section 5-A(1) of the Prevention of 17 Corruption Act as indicated in this judgment. Further we set aside the order of the High Court awarding costs with a direction that the said costs is payable to respondent 1 (Shri Bhajan Lal) by respondent 2 (Dharam Pal).
141. In the result, the appeal is disposed of accordingly but at the same time giving liberty to the State Government to direct an investigation afresh, if it so desires, through a competent police officer empowered with valid legal authority in strict compliance with Section 5 2DA(1) of the Act as indicated supra. No order as to costs."
(Emphasis supplied) The Apex Court has set registration of crime itself aside, in a case arising out of Prevention of Corruption Act, on the ground that the authorization granted by the Officer did not bear application of mind inter alia. This is further amplified by a subsequent judgment of the Apex Court in the case of STATE INSPECTOR OF POLICE v. SURYA SANKARAM KARRI2 wherein the Apex Court has held as follows:
"13. Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorised in this behalf. The said provision contains a non obstante clause. It makes investigation only by police officers of the ranks specified therein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to 2 (2006) 7 SCC 172.18
in clause (e) of sub-section (1) of Section 13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
Authorisation by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses the expression "shall". Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same. It has not been disputed before us that the investigating officer, PW 41, did not produce any record to show that he had been so authorised. Shri K. Biswal, the Investigating Officer, while examining himself as PW 41, admitted that he had not filed any authorisation letter stating:
"I have received the specific authorisation from SP, CBI, to register a case but I have not filed the said authorisation letter.""
(Emphasis supplied) What would unmistakably emerge from both the judgments of the Apex Court is that proviso to Section 17 becomes mandatory and application of mind while drawing up source information report again becomes mandatory.
10. On the bedrock of the aforesaid principles what is required to be noticed is, whether there was authorization granted to register the crime. The permission granted to register the crime 19 is extracted hereinabove. It needs to be juxtaposed with the order produced in the statement of objections for registration of crime. The order dated 21-04-2023 reads as follows:
"KARNATAKA LOKAYUKTA No.LOK/SP/City/Proceedings/02/2023 M.S.Buildings, Dr.B.R.Ambedkar Veedhi, Bangalore, dt:21/04/2023 PROCEEDINGS OF THE SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTA, BANGALORE CITY DIVISION Sub: Possession of properties disproportionate to the known sources of income by K.L.Gangadharaiah, Assistant Director Town Planning, Yelahanka Zone, Bengaluru North B.B.M.P., Bengaluru.
Ref: Source report submitted by Shri B.G.Kumaraswamy PI-15, KLA, Bengaluru City on 21.04.2023 *** With respect to the above cited subject and reference, it is ascertained that K.L.Gangadharaiah, Assistant Director Town Planning, Yelahanka Zone, Bengaluru North, B.B.M.P., Bengaluru has acquired properties disproportionate to his known sources of income to the extent of Rs.5,76,50,000/- i.e.,148.58% and thereby committed an offence punishable under Sec.12, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act - 1988.
From the material placed before me and with the application of my mind, I am satisfied that a prima - facie case has been made out against K.L.Gangadharaiah, Assistant Director Town Planning, Yelahanka Zone, Bengaluru North, B.B.M.P., Bengaluru warranting a statutory investigation for an offence punishable under Sec.12, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act-1988.20
Hence I pass the following Order ORDER NO.LOK/INV(G)/CITY/20/2023, DATED:21/04/2023 Therefore, by virtue of the powers vested in me under the provisions of Sec.17 of the Prevention of Corruption Act - 1988, I, Ashok K.V., IPS., Superintendent of Police-2, Karnataka Lokayukta, Bengaluru City hereby authorize Sri Basavaraj R Magdum, Dy.S.P.-5, Karnataka Lokayukta, Bengaluru City to register a case under Sec.12, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act - 1988 against K.L.Gangadharaiah, Assistant Director Town Planning, Yelahanka Zone, Bengaluru North, B.B.M.P., Bengaluru and to investigate the said case.
Further, I authorize Sri Basavaraj R Magdum, Dy.S.P-5, Karnataka Lokayukta, Bengaluru City under the provisions of Sec.18 of the Prevention of Corruption Act - 1988 to inspect the Banker Books in so far as it relates to the accounts of the persons suspected to be holding money on behalf of the accused and his family members and benami persons and take or cause to be taken certified copies of the relevant entries there from, the bankers concerned shall be bound to assist the said Police Officer in the exercise of the powers under the said section of law.
Sd/- 21/04/23 (ASHOKA.K.V.IPS.,) Superintendent of Police-2, Karnataka Lokayukta, Bengaluru City Division."
(Emphasis added) The Superintendent of Police is said to have granted permission/ authorization on 21-04-2023 to register the crime allegedly on perusal of source information report prepared on the same day. The number mentioned of the proceedings is 2 of 2023, while passing the order it is indicated as 20 of 2023. If the sanction/authorization 21 had been granted for registration of crime it ought to have been a part of the record before the concerned Court. Before the concerned Court, the counsel for the petitioner has filed an application seeking certified copies of documents filed along with the crime. The application and the reply, read as follows:
".... .... ....
C.C.Sanction order under Section 17 of P.C.Act, 1988 By Superintendent of Police."
.... .... ....
6/7/2023
Sri A.C.Nagarjuna, Advocate for accused has filed a copy application and prays to issue certified copies of documents as mentioned in the Copy application.
Perused the entire file, the I.O has not produced any Sanctioned order issued by the Superintendent of Police U/Sec.17 of P.C.Act in this Crime and hence not found the same in the file.
For kind orders."
(Emphasis added) The registry of the concerned Court has perused the entire file and it is indicated by the Court that the Investigating Officer has not produced any sanction order issued by the Superintendent of Police under Section 17 of the Act in this crime and, therefore, it is not 22 found in the file. If it is not a part of the record before the concerned Court for registration of the crime, the registration of crime itself becomes shaky. Therefore, the learned senior counsel for the petitioner has produced identical orders of authorization issued in several other cases. Those orders read as follows:
"KARNATAKA LOKAYUKTA No.KLA/BCD/SP-2/SOURCE/01/2023 M.S.Buildings, Dr.B.R.Ambedkar Veedhi, Bangalore, dt:09-02-2023 PROCEEDINGS OF THE SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTA, BANGALORE CITY.
Sub: Possession of properties disproportionate to known source of income by Sri Venkatesh.G., Deputy Conservator of Forest, Social Forestry, Kolar.
Ref: Source Report submitted by Sri Vijayakrishna.N, Police Inspector-11, Karnataka Lokayuktha, Bangalore City P.S., Dated 09/02/2023.
*** I have gone through the source report submitted by Sri Sri Vijayakrishna.N, Police Inspector, Karnataka Lokayukta, Bangalore City P.S., relating to his receipt of credible information that Sri.Venkatesh.G., Deputy Conservator of Forest, Social Forestry, Kolar has acquired properties disproportionate to his known source of income to the extent of Rs.1,62,52,000/- and there by committed an offence under section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988.
From the material placed before me and with application of my mind I am satisfied that the prima-facie case is made out against Sri.Venkatesh.G., Deputy Conservator of Forest, Social Forestry, Kolar warranting a statutory investigation for an 23 offence under section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988.
ORDER NO.KLA/INV/BCD/SP-2/01/2023, DATED 09-02-2023.
Therefore by virtue of the powers vested in me under provisions of Section 17 of the Prevention of Corruption Act 1988, I, Ashok.K.V., Superintendent of Police, Karnataka Lokayukta, Bangalore City Division, Bangalore order that Sri Satish.M.H., Deputy Superintendent of Police, Karnataka Lokayukta, Bangalore City Police Station, Bangalore to register a case under Section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988 against Sri.Venkatesh.G., Deputy Conservator of Forest, Social Forestry, Kolar and to investigate the said case.
Further I authorize Sri Satish.M.H., Deputy Superintendent of Police, Karnataka Lokayukta, Bangalore City Police Station, Bangalore, under the provisions of the section 18 of the Prevention of Corruption Act 1988 to inspect the bankers books in so far as it relates to the accounts of the persons suspected to be holding money on behalf of the said Sri.Venkatesh.G., Deputy Conservator of Forest, Social Forestry, Kolar and to take or cause to be taken certified copies of the relevant entries there from and the bankers concerned shall be bound to assist the police officer Sri Satish.M.H. Deputy Superintendent of Police, Karnataka Lokayukta, Banglaore City Police Station, Bangalore in the exercise of the powers under the said section of law.
Sd/- 09-02-23 [Ashok.K.V.IPS] Superintendent of Police-2, Karnataka Lokayukta, Bangalore City Division, Bangalore.
To:
Sri Satish.M.H., Deputy Superintendent of Police, Karnataka Lokayukta, 24 Bangalore City Police Station.
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...
"KARNATAKA LOKAYUKTA No.KLA/BCD/SP-2/SOURCE/03/2023 M.S.Building, Dr.B.R.Ambedkar Veedhi, Bangalore, Dated:30.05.2023 PROCEEDINGS OF THE SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTA, BANGALORE CITY.
Sub: Possession of properties disproportionate to known source of income by Sri T.V.Narayanappa, Deputy Director of Factories, 3rd Division, 2nd Floor, Karmikara Bhavana, Bannergatta Road, Bengaluru.
Ref: Source Report submitted by Sri Manjunath S Hugar, Police Inspector-5, Karnataka Lokayuktha, Bangalore City P.S., Dated 16.05.2023.
*** I have gone through the source report submitted by Sri Manjunath S Hugar, Police Inspector - 5, Karnataka Lokayukta, Bangalore City P.S, relating to his receipt of credible information that Sri.T.V.Narayanappa, Deputy Director of Factories, 3rd Division, 2nd Floor, Karmikara Bhavana, Bannergatta Road, Bengaluru has acquired properties disproportionate to his known source of income to the extent of Rs.2,89,58,210/- and there by committed an offence under section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988.
From the material placed before me and with application of my mind I am satisfied that a prima-facie 25 case is made out against Sri.T.V.Narayanappa, Deputy Director of Factories, 3rd Division, 2nd Floor, Karmika Bhavana, Bannergatta Road, Bengaluru warranting a statutory investigation for an offence under section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988.
ORDER NO.KLA/INV/BCD/SP-2/03/2023, DATED 30.05.2023.
Therefore by virtue of the powers vested in me under provisions of Section 17 of the Prevention of Corruption Act 1988, I, Ashok.K.V., Superintendent of Police, Karnataka Lokayukta, Bangalore City Division, Bangalore order that Sri Vijayakrishna N, Police Inspector-11, Karnataka Lokayukta, Bangalore City Police Station, Bangalore to register a case under Section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988 against Sri.T.V.Narayanappa, Deputy Director of Factories, 3rd Division, 2nd Floor, Karmikara Bhavana, Bannergatta Road, Bengaluru and to investigate the said case.
Further I authorize Sri Vijayakrishna N, Police Inspector- 11, Karnataka Lokayukta, Bangalore City Police Station, Bangalore, under the provisions of the section 18 of the Prevention of Corruption Act 1988 to inspect the bankers books in so far as it relates to the accounts of the persons suspected to be holding money on behalf of the said Sri.T.V.Narayanappa, Deputy Director of Factories, 3rd Division, 2nd Floor, Karmikara Bhavana, Bannergatta Road, Bengaluru and to take or cause to be taken certified copies of the relevant entries there from and the bankers concerned shall be bound to assist the police officer Sri Vijayakrishna N, Police Inspector -11, Karnataka Lokayukta, Bangalore City Police Station, Bangalore in the exercise of the powers under the said section of law.
Sd/- 30-05-23 [Ashok.K.V.IPS] Superintendent of Police-2, Karnataka Lokayukta, Bangalore City Division, Bangalore.
To:
Sri Vijayakrishna N., 26 Police Inspector-11, Karnataka Lokayukta, Bangalore City Police Station.
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(Emphasis added) Though these are in the nature of nitpicking by this Court in exercising its jurisdiction under Section 482 of the Cr.P.C., the action of the Lokayukta does not inspire confidence of the Court, as brought before the Court by the petitioner, with all necessary documents, that there was no authorization, to the Investigating Officer by the Superintendent of Police, to register the crime, the vindication is that it is not a part of the record at all. If that is the endorsement, the documents that are produced before this Court, again do not inspire confidence. Therefore, the entire process initiated by the Lokayukta becomes a mockery of law.
11. A perusal at the original records would reveal yet another infirmity and would demonstrate the Lokayukta seeking to initiate proceedings in a hottest haste. The source information report, as 27 observed hereinabove, is drawn on 21-04-2023. The Competent Authority, exercising its jurisdiction under Section 17 of the Act, approves registration of crime on the same day. The crime comes to be registered on the same day. Therefore, all the events have happened on the same day. These events drag the public servant into the web of crime. All the events are triggered by drawing up of a source information report. The source information report is appended to the petition. The check period is depicted to be from the beginning of the career of the petitioner, which would be 1993. The petitioner is even now working and has drawn salary for the month of March'2023. The clock of the check period, in the source information report stops at 31-12-2015, why does it stop at 31-12- 2015 is ununderstandable. To a pointed query, in this regard, yields no answer, from the hands of the counsel for the respondent. Check period while drawing, a source information report has some significance, as it depicts the income of a Government servant against whom proceedings are sought to be drawn, for offences punishable under the Act. The check period forms a part of the source information report. The crime is registered in the year 2023; the check period stops at 31-12-2015, 8 years prior to the 28 registration of the crime. Due to this act of the respondent, the projection of disproportionate asset to the known sources of income is 148.58%. It is not that mere taking of the salary for 8 years would bring down the percentage of disproportionate asset to a zero, but it is a faulty check period which renders the source information report faulty. This is apart from the lacunae that are indicated hereinabove.
12. It is ununderstandable as to why the Lokayukta is in a mortal hurry in certain cases particularly of disproportionate assets. It would be an altogether different circumstance if it was a case of trap where it has to be immediately done and discretely done. These are cases of disproportionate assets beyond the known sources of income. A properly drawn source information report would always be a guiding light throughout the prosecution or investigation in the least. Therefore, it is necessary for drawing up a source information report with a semblance of application of mind and the Superintendent of Police who would peruse the source information report and authorize registration of crime pass appropriate orders in that regard. Exercise of extreme power of 29 registration of crime against a Government servant under Sections 13(1)(b) and 13(2) of the Act has drastic consequences on a Government servant. The responsibility of the institution like the Lokayukta to curb the menace of corruption cannot also be ignored. Therefore, it is for the Lokayukta not to let loose any loophole, of the kind that is projected in the case at hand in a case of launching of prosecution for disproportionate assets. The very object of registration of crime is whittled away, by such course of procedural aberration.
13. The original records that are produced by the Lokayukta concerning the case at hand also do not indicate any such order being passed by the Superintendent of Police authorizing registration of crime based upon source information report. What is found in the file is what is produced at page 100 of the statement of objections which is already discussed supra. Beyond this there is no other document in the original records as well.
14. For the aforesaid reasons and in the light of the law laid down by the Apex Court, the registration of crime cannot but be 30 obliterated. However, obliteration would not mean that the respondent is barred from taking any action in accordance with law, from the stage of defects observed in the course of the order.
15. For aforesaid reasons, I pass the following:
ORDER
(i) Writ petition is allowed.
(ii) FIR dated 21-04-2023 filed by the Karnataka Lokayukta Police in Crime No.20 of 2023 stands quashed.
(iii) Liberty is reserved in the respondent/Karnataka Lokayukta Police to take appropriate action in accordance with law, bearing in mind the observations made in the course of the order, from the stage of defects being pointed out.
Sd/-
JUDGE Bkp/CT:MJ