Karnataka High Court
Mr Mir Arif Ali vs State Of Karnataka on 21 July, 2015
Equivalent citations: 2015 (4) AKR 166
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.3213/2015
BETWEEN:
Mr. MIR ARIF ALI
S/O LATE Mr. NAKHI ALI,
AGED 60 YEARS, Rtd. Dy.S.P.,
RESIDENT OF NO.41, 1ST B CROSS,
K.H.B.M.I.G. COLONY,
KORAMANGALA VIII BLOCK,
BANGALORE-560 095.
... PETITIONER
(BY SRI I.S. PRAMOD CHANDRA, ADV.)
AND:
STATE OF KARNATAKA
BY LOKAYUKTA POLICE
KOLAR
THROUGH THE SPECIAL PUBLIC PROSECUTOR,
KARNATAKA LOKAYUKTA,
M.S. BUILDING, Dr. AMBEDKAR VEEDHI,
BAGALORE-560 001.
... RESPONDENT
(BY SRI VENKATESH P. DALWAI, SPL. P.P.)
THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO
ORDER FOR TRANSFERRING OF THECASE IN PCA CC NO.
11/2009 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE
AND SPECIAL JUDGE UNDER PREVENTION OF CORRUPTION
ACT, KOLAR TO THE COURT OF THE LEARNED DISTRICT AND
2
SESSIONS JUDGE AND SPECIAL JUDGE UNDER PREVENTION
CORRUPTION ACT AT BANGALORE, FOR DISPOSAL IN
ACCORDANCE WITH LAW.
THIS CRL.P. COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner was a public servant. The respondent registered an FIR against the petitioner, purported to be for the commission of offence punishable under S. 13(1)(e) of the Prevention of Corruption Act, 1988 ('the Act' for short) i.e., acquiring of assets disproportionate to the petitioner's known source of income for the check period. Upon completion of investigation, a charge sheet was filed by the respondent. Cognizance of the offence having been taken, learned District and Sessions Judge and Special Judge under the Act, at Kolar, registered PCA CC No.11/2009 and issued process. An application filed by the petitioner, under S.239 of Cr.P.C., seeking discharge was dismissed on 03.12.2014. The case is at the stage of trial. This petition was filed under S.407 of Cr.P.C., 1973, for transfer of the said case to the Court of District and 3 Sessions Judge and Special Judge under the Act, at Bengaluru, mainly on the ground that the properties alleged to have been accumulated by the petitioner are situated within the limits of Bengaluru and none of the properties are situated within the jurisdiction of District and Sessions Judge and Special Judge under the Act, at Kolar.
2. Sri I.S.Pramod Chandra, learned advocate, would contend that the ingredients of offence involving S.13(1)(e) of the Act, vis-à-vis other provisions thereof, read with Ss.177 and 178 of the Code of Criminal Procedure would clearly go to show that the situs of the properties which are said to have been acquired out of the income of the petitioner, would not confer jurisdiction upon the Court and relevant factor would be as to where the public servant concerned committed the acts of alleged misconduct or allegedly abused his official position. Learned counsel submitted that the petitioner had worked as Inspector of Police, Koramangala Police Station, 4 Bengaluru City during the year 2006 and it was alleged that the petitioner has accumulated wealth to the tune of `84 lakhs disproportionate to his income and the FIR was registered. Learned counsel further submitted that the petitioner having served in and around the jurisdiction of Bengaluru City i.e., during most part of his service, all the properties which are alleged to have been accumulated by the petitioner, being within the limits of Bengaluru and as none of the properties being situated in the jurisdiction of District and Sessions Judge and Special Judge under the Act, at Kolar and as all the witnesses have to travel from Bengaluru to Kolar and that the petitioner also being the resident of Bengaluru, he will have to travel to Kolar every time when the matter comes up for trial, this is a fit case to exercise power under S.407 of Cr.P.C., for transfer of the case.
3. Sri Venkatesh P.Dalwai, learned advocate for the respondent, on the other hand, contended that by reason of Sub-section (3) of S.5 of the Act, the provisions 5 of the Code have been made applicable in relation to the proceedings initiated under the Act and in a case where an offence was committed at more than one place, any of the Courts will have jurisdiction to try the offence. He referred to the provisions under Ss.177 and 178 of the Code and also Ss.3, 4, 5 and 13 of the Act.
4. The Act is a special Statute and hence, it overrides the provisions of the Code. However, when the matter is not covered by the provisions of the Act, in view of Sub-section (3) of S.5 of the Act, provisions of the Code shall be applicable.
5. CW.16 has stated that the petitioner has purchased the property situated at Charaka Mattenahalli Village in Gowribidanur Taluk, for a sum of `5 lakhs. Six properties, three each, standing in the name of mother and sister of the petitioner, are situated at Charaka Mattenahalli Village and Pothenahalli Village of Gowribidanur Taluk and Chikkaballapura Taluk. CWs.11, 12, 13, 16, 22 and 23 are the residents of Chikkaballapura 6 District. CWs. 1 and 21 were working as Inspectors of Police of the respondent as on the date of the filing of the charge-sheet.
6. In V.K.PURI Vs. CENTRAL BUREAU OF INVESTIGATION, (2007) 6 SCC 91, the question considered by the Apex Court was "what would be the territorial jurisdiction of a Special Court within the meaning of the provisions of the Act?
7. In the said case, FIR was registered for the offences under S.13(2) read with 13(1)(e) of the Act for the check period and the contention raised was that the accused/petitioner had never been posted in Delhi during the check period and hence, the Delhi Court has no jurisdiction. The contention having been rejected by the Trial Judge and the High Court and the matter having been taken up before the Apex Court, after referring to the relevant statutory provisions and while dismissing the appeal, it has been held as follows:
"20. In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired 7 wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence.
21. Each Court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known source of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts. It is one thing to say that only the Special Courts will have jurisdiction to try the offence, but for the purpose of arriving at a decision as to the Special Judge of which place shall have the requisite jurisdiction, the situs of the property may or may not have any relevance. Once the situs of the property is held to have relevance for the purpose of ascertaining his known source of income and consequent acquisition of disproportionate assets, in our opinion, the Special Judge concerned will also have the requisite jurisdiction to try the case. For the said purpose, purport and object for which the 1988 Act has been enacted must be taken into consideration. The doctrine of purposive construction therefor must be taken recourse to."
(emphasis supplied)
8. In the present case, when the FIR in Crime No.3/2006 was registered on 13.03.2006, Charaka Mattenahalli Village and Pothenahalli Village, where the said items of properties are situated, were within the jurisdiction of District and Sessions Judge and Special Judge under the Act, at Kolar. Chikkaballapura District was carved out from Kolar District. In view of new 8 Chikkaballapura District being carved and the State Government in exercise of power under S.3 of the Act, by issuing a Notification in the Official Gazette, having appointed a Special Judge for Chikkaballapura District area, PCA CC No.11/2009 ought to have been transferred by an administrative order to the newly established Court at Chikkaballapura, wherein also, the respondent is having its office.
9. Since certain items of the properties allegedly acquired by the petitioner, disproportionate to the known source of his income are situated within the newly established Chikkaballapura District and as large number of witnesses are also residents of Chikkaballapura District, as on the date of filing of the charge-sheet, it would be expedient and in the interest of justice to allow this petition and transfer the case.
In the result, this petition is allowed and the case in PCA CC No.11/2009 pending in the Court of District and Sessions Judge and Special Judge under the Act, at Kolar, 9 is transferred to the District and Sessions Judge and Special Judge under the Act, at Chikkaballapura.
The record of the case shall be forthwith transferred to the transferee Court, which shall take up the matter on 24.08.2015 and decide the case with expedition and within a period of one year from the date of first appearance of both the parties, since more than nine years have elapsed after registration of the FIR and six years have elapsed after filing of the charge-sheet.
The petitioner and the respondent are directed to appear before the transferee Court on 24.08.2015 and receive further orders. The petitioner shall extend ready co-operation to the transferee Court, to decide the matter, within the aforesaid period.
Sd/-
JUDGE sac*