Karnataka High Court
Shri.Mallikarjun S/O Guruputrappa ... vs The State Of Karnataka on 28 September, 2022
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO.101231/2021
BETWEEN
SHRI.MALLIKARJUN S/O GURUPUTRAPPA KULAKARNI,
AGE. 35 YEARS, OCC. PRESENTLY WORKING AS POLICE
SUB INSPECTOR, AMINAGAD POLICE STATION,
HUNAGUNDA TALUKA, BAGALKOTE DISTRICT-587101
...PETITIONER
(BY SRI. L. S. SULLAD, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ACB BY.S.P. ANTI CORRUPTION SQUARD NORTH
DIVISION BELAGAVI
REPRESENTED PUBLIC PROSECUTOR BY ACB,
HIGH COURT OF KARNATAKA,
DHARWAD-580001.
2. SHRI.NARAYAN KALAL S/O CHANDASHEKHAR
AGE 57 YEARS, OCC EXCISE CONTRACTOR,
R/O HOUSE NO.4842/B-1, 2ND MAIN, 6TH CROSS,
SADASHIVANAGAR, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. SANTOSH MALAGOUDAR, ADV., FOR R1;
SRI. M. H. PATIL, ADVOCATE FOR R2)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
PRAYING TO QUASH THE ENTIRE PROCEEDINGS, SUBSEQUENT
PROCEEDINGS AND CHARGE SHEET IN ACB CRIME NO.10/2018
SPECIAL CASE NO.25/2021 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 7(a) OF PREVENTION OF CORRUPTION ACT-
1988, PENDING ON THE FILE OF IV ADDL. DISTRICT AND
SESSIONS JUDGE, SPECIAL COURT, BELAGAVI.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
14.09.2022, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner, who is arraigned as accused, has filed this petition under section 482 of Cr.P.C. with a prayer to quash the entire proceedings and charge sheet in Crime No.10/2018 (Special Case No.25/2021) for the offence punishable under section 7(a) of the Prevention of Corruption Act, 1988, (Amended Act, 2018), (for short "P.C.Act") pending on the file of IV Additional Sessions and District Judge (Special Court), Belagavi.
2. The petitioner has contended that during 2016, he was working as PSI at Kittur Police Station of Belagavi District. On 03.08.2018, respondent No.2 filed a written complaint alleging that during 2017 Ganesh festival, there was prohibition for selling liquor as per the orders of the -3- Deputy Commissioner, Belagavi. However, the petitioner apprehended a person selling liquor illegally in front of liquor shop of respondent No.2 and registered a criminal case against him. Alleging that during the month of July- 2018, petitioner called respondent No.2 to police station and issued notice under section 41-A of Cr.P.C. and when respondent No.2 met the petitioner, he asked respondent No.2 as to why in these two years he has not come and met him and pay the Hafta, which the owners of other liquor shops regularly pay and he gave a threat that he is going to include the name of respondent No.2 and his brother in the charge sheet, which he is going to file and demanded bribe. After much negotiation, petitioner agreed to receive Rs.75,000/- each for not including the names of respondent No.2 and his brother in the charge sheet. Alleging that respondent No.2 has recorded the conversation between him and the petitioner and as he is not willing to pay the bribe, he lodged the complaint against the petitioner. However, on 03.08.2018, when the investigating officer arranged for trap in the police station, petitioner instead of receiving the bribe amount by -4- himself, directed respondent No.2 to handover the money to one Vishnu Kalal and in this way, the trap could not be successfully executed. However, based on the material, charge sheet came to be filed against the petitioner for the offence punishable under section 7(a) of the P.C.Act.
3. Respondent No.1 appeared through standing counsel Sri. Santosh Malagoudar and respondent No.2 has appeared through Sri. M. H. Patil, advocate.
4. During the course of arguments, learned counsel for the petitioner submitted that there is no prima facie material to show that the petitioner has demanded or accepted illegal gratification. The entire prosecution papers do not reveal that there was any demand by the petitioner for illegal gratification. The conversation recorded by respondent No.2 on 02.08.2018 does not disclose any demand put forth by the petitioner. In fact, the conversation was started by respondent No.2 and since there was no demand by the petitioner, the entire proceedings are liable to be quashed.
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4.1. The learned counsel for petitioner would further submits that petitioner registered a case in Crime No.238/2018 under section 32 and 34 of the Karnataka Excise Act, 1965 (for short "K.E.Act"), against accused No.1-Prakash Basappa Kuri. During investigation, sufficient documentary material was collected against respondent No.2 and his brother and accordingly charge sheet was filed against accused No.2 and 3 in addition to accused No.1. The charge sheet was prepared on 28.07.2018 and was filed on 02.08.2018. This itself goes to show that respondent No.2 approached the petitioner with a malafide intention on 02.08.2018 at 7.00 p.m. and recorded the conversation between him illegally with an ulterior motive of involving the petitioner in crime. He would further submit that respondent No.2 is in the habit of filing false complaint against government officials. In fact, he has filed a complaint in Crime No.14/2011 against Somashekharappa, Deputy Commissioner of Excise and Crime No.4/2012 against S.N.Somanal, DCTC, Belagavi and they have ended in acquittal. On 03.08.2018 he has lodged complaint against the petitioner. When raid party -6- approached the petitioner, he was on rounds. The entire charge sheet does not make out any case for demand and acceptance of illegal gratification. The petitioner is a responsible public servant and he is due for promotion. With ulterior motive he has been falsely implicated. On 03.08.2018 petitioner was under order of transfer. The entire allegations do not attract section 7(a) of the P.C. Act and prays to quash the proceedings.
4.2. In support of his submissions, the learned counsel for petitioner has relied upon the following decisions.
i) Rayala M. Bhuvaneswari Vs. Nagaphanender Rayala1 (Rayala's case)
ii) People's Union for Civil Liberties (PUCL) Vs. The Union of India and another2 (PUCL's Case)
iii) The State of Andhra Pradesh Vs. Aravapally Venkanna and another3 (Aravapally Venkanna''s Case) 1 AIR 2008 AP 98 2 1997 (1) SCC 301 3 (2009) 13 SCC 443 -7-
iv) Smt.Somly Gupta Vs. The State of Madhya Pradesh4 (Somly Gupta's Case)
5. On the other hand, learned counsel representing the respondents argued that though in crime No.238/2018, respondent No.2 and his brother are not involved, in order to extract money from them, during the month of July-2018, petitioner summoned respondent No.2 and issued the notice under section 41-C of Cr.P.C., and demanding that over entire two years during which period he was working in police station, respondent No.2 has not given regular Hafta, which is being paid by the owners of other liquor shops and gave a threat that the names of respondent No.2 and his brother would be included in the charge sheet. The conversation recorded between respondent No.2 and the petitioner reveal that after much negotiation, petitioner agreed for Rs.75,000/- each and demanded that the same shall reach him on the same day itself and when respondent No.2 expressed his inability, petitioner directed him to give the money on the next day to one Vishnu Kalal.
4 MCRC 25326/2018 DD 13.03.2019 -8- 5.1. They would further submit that the conversation goes to show that already petitioner has prepared the charge sheet and if the respondent No.2 fails to pay the amount, then the charge sheet would be filed and if the payment is made, then the names of respondent No.2 and his brother would be deleted from the charge sheet and it would be presented to the Court against accused No.1 only. They would further submit that on 03.08.2018, based on the conversation which was recorded between respondent No.2 and the petitioner, he filed a complaint and the investigating officer prepared for trap. However, on 03.08.2018, when the investigating officer and the trap party reached the police station, petitioner managed to evade receiving the money by saying that it should be handed over to Vishnu Kalal and therefore, the trap could not be held. However, the complaint averments are supported by the conversation recorded and the forensic report prove that it is the conversation between the petitioner and respondent No.2 and on that basis a strong prima facie case is made out against the petitioner and prays to reject the petition.
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5.2. In support of their arguments, learned counsel for respondent No.1 and 2 have relied upon the following decisions:
i) State by Karnataka Lokayukta, Police station Bengaluru Vs. M.R.Hiremath5 (Hiremath's case)
ii) Ramanjaneya Vs. State of Karnataka6 (Ramanjaneya's case)
6. Heard the arguments and perused the records.
7. It is not in dispute that at the relevant point of time the petitioner was working as PSI at Kittur Police Station and he was the investigating officer in Crime No.238/2018 for the offences punishable under section 32 and 34 of K.E.Act. In the said criminal case, accused No.1- Prakash Basappa Kuri was arrested while selling liquor on 04.09.2017 at 3.00 p.m. on which day there was prohibition for sale of liquor. On the statement of accused No.1 therein that he was selling liquor in question as per the directions of accused No.2 and 3, respondent No.2 and 5 (2009) 7 SCC 515 6 2012 Crl.L.J.1493
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his brother have been implicated. However, the conversation that took place between petitioner and respondent No.2 which was recorded by him on his cell phone, throughout petitioner has stated that he is under an order of transfer, already he has prepared charge sheet including the names of respondent No.2 and his brother and if he fails to pay the amount, then the charge sheet would be filed as it is. The conversation reveals that even though initially the petitioner has not specified the amount which is required to be paid, however, the reading of the entire conversation makes it evident that the petitioner reprimanded respondent No.2 for not coming and meeting him for the entire two years during which period he worked in the said police station and pay the Hafta as paid by the owners of other liquor shops. He has given threat to respondent No.2 that if he fails to pay the amount, then respondent No.2 and his brother would be arraigned as accused and charge sheet would be presented to the Court. In fact throughout conversation, it is found that the petitioner has called his subordinate and directed him to take details of respondent No.2 and his brother to include
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their names in the charge sheet and gave warning that if he fails to pay money then charge sheet would be submitted and on the other hand, if he managed to pay the money, then the charge sheet would be submitted by deleting their names. In fact, petitioner states that the amount, which he is referring, is only to delete the names of respondent No.2 and his brother and it does not include the amount due for the two years during which period he worked there. He goes to the extent of saying that the amount is required to be distributed from top to bottom and after which he will not be left with much amount. When questioned, whether money should be given to the petitioner himself or somebody else, he specifically states that it would be given to one Vishnu Kalal. Petitioner also advices respondent No.2 that he should be always in the good books of PSI, who can do and undo anything. During conversation, he also gives the cell number of said Vishnu Kalal and the conversation between respondent No.2 with the said Vishnu Kalal and petitioner is also recorded. In the conversation the arrangement to be made for receipt of bribe amount is also recorded. When respondent No.2
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questions whether Rs.50,000/- would be sufficient not to include their names, petitioner refuses and demands Rs.75,000/- each for respondent No.2 and his brother. Reading of the conversation, which is recorded by respondent clearly indicates that petitioner in an unequivocal terms demanded bribe of Rs.75,000/- each to delete the names of respondent No.2 and his brother. It appears that when the investigating officer and the trap party approached the petitioner, not to take the risk, he directed respondent No.2 to handover the money to one Vishnu Kalal and in that way, the trap could not be executed. However, in the light of provision of section 7(a) of the P.C. Act, prima facie the offence is made out.
8. Relying upon the decision reported in PUCL's case referred to supra, the learned counsel for petitioner submitted that telephone tapping amounts to infringement of fundamental right of the individual and the same cannot be relied upon. This is not a case of tapping the phone of petitioner but, when respondent No.2 met the petitioner at the police station where he was working, he has recorded
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the conversation between him and the petitioner on his cell phone recorder. Therefore, it cannot be accepted that there is infringement of fundamental right of the petitioner. Therefore, this decision is not applicable to the case on hand.
9. In Aravapply Venkanna's case and Somly Gupta's case referred to supra relied upon by the petitioner, the Hon'ble Supreme Court held that no hard and fast rule can be laid down as to in which cases the High Court can interfere under section 482 of Cr.P.C. and even in advance stage of trial interference under section 482 of Cr.P.C. is permissible. However, having regard to the facts and circumstances of the present case, I am of the considered opinion that no interference is called for under section 482 of Cr.P.C. and as such, these decisions cannot be pressed into service.
10. Rayala's case referred to supra, relied upon by the petitioner is arising out of a matrimonial dispute where the husband recorded the conversation between him and his wife and appreciating the facts and circumstances of
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the case therein, the Hon'ble Andhra High Court held that it was not admissible. As discussed earlier, this is not a case of telephone tapping and in order to make out a prima facie case for registering the complaint, the respondent No.2 has recorded the conversation and based on the same, filed the complaint. Therefore, this decision is also not applicable to the case on hand.
11. On the other hand, in Ramanjaneya's case referred to supra relied upon by the respondents, having regard to the prima facie case made out against the accused, this Court refused to quash the proceedings under section 482 of Cr.P.C. Similarly, in Hiremath's case referred to supra, the investigating officer had given a spy camera to the complainant with instructions to record conversation between him and the accused and based on it, proceeded to lay the trap. Upholding the same, the Hon'ble Supreme Court held that by way of preliminary enquiry, the investigating officer wanted to make sure about the alleged demand being made by the accused and therefore, set aside the order of this Court quashing the
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proceedings and thereby upheld the order of the Special Judge, Bengaluru, rejecting the application of the accused for discharge under section 239 of Cr.P.C. These two decisions are aptly applicable to the case on hand.
12. Thus, from the above discussions, I hold that this is not a fit case to exercise the discretion of this Court under section 482 of Cr.P.C. Accordingly, the petition fails and I proceed to pass the following:
ORDER The petition is dismissed.
In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE YAN