Karnataka High Court
Mahesh Patil vs The Central Bureau Of Investigation on 15 September, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL REVISION PETITION No.1146/2015
BETWEEN:
MAHESH PATIL
AGED 46 YEARS,
S/O.A.G. PATIL,
LAXMINAGAR,
OPP.TO RURAL POLICE STATION,
BAGALKOT-587101.
..PETITIONER
(BY SRI KIRAN S JAVALI, ADVOCATE & SRI
CHANDRASHEKARA K., ADVOCATE)
AND:
THE CENTRAL BUREAU OF INVESTIGATION
BELLARY ROAD,
BANGALORE-560031.
..RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL.PP.)
THIS CRIMINAL REVISION PETITION IS FILED
U/S.397 R/W 401 CR.P.C., PRAYING TO SET ASIDE ORDER
DATED 08.10.2015 PASSED IN SPL.C.C.NO.116/2012 BY
THE XLVI ADDL. CITY CIVIL AND SESSIONS JUDGE AND
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SPECIAL JUDGE FOR CBI CASES, BANGALORE AND
DISCHARGE THE PETR./ACCUSED NO.7 IN
SPL.C.C.NO.116/2012 BY THE XLVI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES,
BANGALORE.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT THROUGH VIDEO CONFERENCE AT
BENGALURU MADE THE FOLLOWING:
ORDER
This matter is taken up through Video Conference today.
2. Heard learned Counsel Sri Kiran S. Javali for the petitioner, who appeared before court and learned Spl.P.P. Sri P. Prasanna Kumar, for the respondent who appeared through VC. With their consent, matter is taken up for final disposal.
3. In order to avoid confusion and overlapping, parties are addressed with reference to their ranks and status as held by them before the trial Court. 3
4. This criminal revision petition is filed by accused No.7 under Section 397 read with Section 401 of Cr.P.C., praying to set aside the order dated 08.10.2015 passed in Spl. C.C. No.116/2012 on I.A. No.28 on the file of XLVI Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore and to discharge him in the said case.
5. The substance of the case is that, the petitioner herein, namely; Mahesh Patil S/o. Annasaheb Gowdappa Patil, aged about 43 years, Lakshminagar, Opp: Rural Police Station, Bagalkot, who was stated to be Range Forest Officer of Sandur Division Range Forest, has been charge-sheeted on 30.05.2012 by the respondent-CBI as accused No.7 along with other accused persons for the offences punishable under Sections 120(B), 379, 409, 420, 447, 468, 471 and 477-A of IPC and Section 13(2) read with Section 4 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Petitioner filed an application before the designated Court under Section 239 of Cr.P.C., seeking for his discharge for offences alleged against him by the complainant-CBI, on the ground that the ingredients of the offences charge-sheeted against him are not present and there are no grounds to proceed against him.
6. The learned Special Judge after hearing the parties passed the order wherein I.A. No.28 filed by petitioner herein along with I.A. Nos. 16, 17 and 29 filed by other accused persons came to be dismissed and the relevant operative portion of the order passed by the Special Judge is as under:
"The I.A. Nos.16, 17, 29 & 28 are dismissed. The oral plea for 5 discharge made by accused No.8 is dismissed."
7. Being aggrieved by the said order, the petitioner/accused No.7 is before this Court in this revision.
8. Learned Counsel appearing on behalf of the petitioner submits that basically petitioner is a Public Servant working as Range Forest Officer which is one of the reputed Government job in the Forest Department. He emphasizes that if there were any abuse of forest resources or if any product or any of the elements belonging to the forest were misused or misappropriated, there is provision under the Forest Act to take action and the very fact that not invoking any provision of Forest Act goes to show that there is no breach of principle in order to abuse dominion, if any, entrusted to the petitioner. The charge-sheet 6 was filed under misconceived notion and hence, petitioner is entitled for an order of discharge.
9. Learned counsel would also submit that the learned trial Judge erred in dismissing the application for discharge filed by the petitioner/accused No.7. It is also submitted that the mandate under Section 239 of Cr.P.C., has not been adhered insofar as the examination is concerned. Section 239 of Cr.P.C., has been ignored which has materially affected the rights of the petitioner. It is also submitted that in the entire investigation no offence under the Forest Act are alleged against the petitioner. He submits the learned Special Judge considered the case overlapping the Forest Act and the MMRD Act and on this ground among others he seeks for discharge of accused No.7 from the case.
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10. Learned Special P.P. - Sri P. Prasanna Kumar appearing for the respondent-CBI would submit that it is foregone conclusion that accused No.7 has committed the offences alleged against him. He submits that the learned Special Judge has rightly ordered for framing the Charge. He would further submit that this Court in its previous judgment has held that accused irrespective of his designation is liable to face trial in respect of the offences alleged against him, as prima facie materials are available and interference cannot be called for by this Court. He submits that this Court has dealt with a similar situation while disposing of the application filed by one H.Ramamurthy - accused No.8, who had urged for discharging him from the case claiming that the allegations made against him are groundless and insofar as financial capacity is concerned, he was also working as Range Forest Officer at the relevant point 8 of time. Learned Special P.P. for the CBI would further submit that the aspects of the offences punishable under the Forest Act are dealt with in Criminal Revision Petition No.1129/2015.
11. I have gone through the submissions made by the learned counsel for the petitioner and the learned Special P.P. for the respondent and perused the records.
12. Under Section 190 of Cr.P.C., the Court takes cognizance of the offence and not the offender. Ultimately the trial decides whether the offences alleged were committed or not. Insofar as the offences charged against accused are concerned, the principal offence as submitted by the learned counsel are under Section 409 of IPC and Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of 9 Corruption Act, 1988. So far as the effect of disposal of the application filed either under Section 239 or 227, as the case may be, a discharge has the effect of acquittal and thus requires a detailed order. However, prima facie it is found that there are grounds to proceed against the petitioner-accused No.7 and the Court ordered for framing the Charge.
13. It is also submitted that insofar as order to frame Charge or rejection of application for discharge, need not be followed by a detailed cross examination of all the prosecution witnesses. It is the satisfaction in the mind of the Court that tells it that there are grounds to proceed against the offender. Of course they could file the documents to establish that there were no grounds to believe that the accused has committed the alleged offences. Insofar as the present order is concerned, the trial Court has passed 10 a detailed order wherein the pleas for discharge of some of the accused were accepted and the application of some of the accused are dismissed, as stated in the operative portion of the order impugned. In this connection, accused Nos.2 and 3 were discharged by the trial Court. The complainant-CBI preferred revision petition before this Court and this court allowed the said Crl.R.P.No.838/2016 and set aside the order passed in favour of accused No.3 by the trial Court. Insofar as accused No.2 is concerned it appears the matter ended with the order of learned Special Judge. Insofar as the oral plea for discharge of accused No.8 is concerned, that was rejected and matter was set at rest by disposal of the Criminal Revision Petition No.1129/2015 dated 10th March, 2016. Learned Special Judge concluded by directing accused No.1, 4 to 8 to face trial. This is the revision petition filed by accused No.7.
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14. The textures of Sections 13(1)(c) of Prevention of Corruption Act and Section 409 of IPC, no doubt, have certain similarities. The difference is that Section 13(1)(c) of the Prevention of Corruption Act is meant for a Public Servant who has been entrusted with the dominion of authority and the circumstances wherein if misuse of said dominion authority and the related made benefit out of it or allows any other persons to make use of such benefits contrary to the provisions of law and Section 409 of IPC is for Criminal breach of trust by public servant, or by banker, merchant or agent. It is necessary to extract Section 13(1)(c) of the Prevention of Corruption Act, 1988 and Section 409 of IPC.
15. Section 13(1)(c) of Prevention of Corruption Act reads as under:
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"(1) A public servant is said to commit the offence of criminal misconduct,-
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do."
16. Section 409 of IPC reads as under:
"Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."13
17. Insofar as petitioner-accused No.7 is concerned he is a Range Forest Officer and learned counsel Sri.Kiran S. Javali would contend that the power or authority entrusted to the petitioner is under the Karnataka Forest Act and no material resource coming under forest is misappropriated or abused by him and under circumstances it is totally impermissible for the prosecution to invoke the provisions of Section 13(1)(c) or Prevention of Corruption Act or Section 409 of IPC.
18. It is in this connection the allegation against accused No.7 include that he issued directions to the foresters to issue forest way permit by signing and directions given by accused No.7 for issuing forest way permits and in this connection blank forms with signatures were issued without verifying the stock of iron ore. He facilitated accused No.1 to carry out 14 illegal mining and transport stolen iron ore in the name of M/s.Associated Mining Company. The documents D-16830 and D-16831 are issued under the directions of Accused No.7. It is also alleged he directed and compelled the sub-ordinates for issue of forest way permit. He also faces allegations inspite of complaint against M/s.Associated Mining Company. He did not choose to take action. Offence may include commission of forbidden thing or acts legally not expected to be done. The sum and substance of the allegation against accused No.7 does not fall under the classification of immunity.
19. When certain acts are forbidden or prohibited or illegal or offensive will have to come before the court for adjudication in accordance with law wherein rights are given to prove and also opportunity of defending rather it is not that a Range Forest Officer like accused No.7 is immuned from prosecution in respect of any 15 other offence and he cannot come under the rider of investigation or is estopped from being tried.
20. The claims and contentions raised by learned counsel for petitioner for discharging the accused No.7 cannot be accepted. It is fair trial that has to adjudicate the matter. On the other hand application made by another Range Forest Officer accused No.8 also came to be rejected.
Under the circumstances I find petition is devoid of merits and is liable to be rejected. Accordingly petition is rejected.
Sd/-
JUDGE SBS*/SBN