Karnataka High Court
N. Nagambikadevi vs Central Bureau Of Investigation, ... on 22 January, 2002
Equivalent citations: 2002CRILJ1334, ILR2002KAR997, 2002(2)KARLJ90, 2002 CRI. L. J. 1334, 2002 AIR - KANT. H. C. R. 606, (2002) ILR (KANT) (1) 997, (2002) 2 KANT LJ 90, (2002) 3 RECCRIR 519, (2002) 2 CURCRIR 94
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER
S.R. Bannurmath
1. The petitioner who is arraigned as accused 4 in Cr. No. RC/22(A/2000 by the respondent/Central Bureau of Investigation has come up in this petition to quash the proceedings.
2. The brief facts leading to the present petition are as follows:
The petitioner/accused, who is an IAS Officer, was working as the Chief Executive Officer, Zilla Panchayat, Karwar, during the relevant period. The other accused in the case are Smt. Shanthakumari, K.S.A.S. (Karnataka State Accounts Service), the then Accounts Officer, Zilla Panchayat, Karwar, her husband Sri N. Ramachandra, Sri Rathnakar, Senior Manager, Karwar, and one Sri Shastri, the then Branch Manager, Varada Grameena Bank, Karwar. According to the respon-dent/complainant-CBI, during the year 1998, accused 1-Rathnakar, while functioning as the Senior Manager, Corporation Bank, Karwar, entered into a criminal conspiracy with accused 2-Smt. Shanthakumari, the then Chief Accounts Officer, Zilla Panchayat, Karwar, and several others unknown, to cheat and misappropriate the Government of India in respect of the funds allotted by the Union Government to the Zilla Panchayat for implementing various Government programs for uplift-ment of poor and needy as well as for providing self-employment to the eligible persons, etc. As such, on receiving credible information in this regard, investigation was taken up. It was noticed during the investigation that accused 2-Smt. Shanthakumari, in her capacity as the Chief Accounts Officer, had opened 5 Savings Bank Accounts in the Bank and being the Cheque Signing Authority had been issuing cheques to various persons, some probably fictitious and not concerned with implementation of the schemes for which the funds were allotted and thereby caused loss to the tune of more than Rupees fifty lakhs. As such, on a preliminary investigation after obtaining necessary consent as required under the Delhi Special Police Establishment Act (for short the 'DSPE Act') a case in Cr. No. RC/22(A)/2000 for the offences under Section 120-B read with Section 420 of the Indian Penal Code and Section 13(2) and 13(1)(c) and (d) of the Prevention of Corruption Act (for short the "PC Act") initially came to be registered against two persons, viz., accused 1 (Rathnakar) and accused 2 (Smt. Shanthakumari). On a further investigation it was also revealed, according to the respondent/CBI, that the said Smt. Shanthakumari with the help and assistance of her husband Sri N. Ramachandra has diverted this Zilla Panchayat fund to the personal Savings Bank Accounts of the petitioner who was the Chief Executive Officer of the Zilla Panchayat, by issuing several cheques and transferring the funds directly to the personal account of the petitioner. This, according to the Investigating Agency, was during the period of 1996-97 and the personal Bank account number of the petitioner was Savings Bank Account No. 725. As per the investigation records, the said accused 3-Sri Ramachandra, husband of accused 2-Smt. Shanthakumari, also revealed the active participation of and receipt of several lakhs of rupees by the petitioner. At the initial stage, on 10-8-2001 the Inspector of Police, CBI, issued a communication to the petitioner informing her that her statement is necessary in this regard and she should be present in the CBI office on 20-8-2001. According to the petitioner, she was shocked by such communication especially when she was an able and honest IAS Officer, she immediately communicated to the Investigating Officer asking him as to what capacity and under what provision she has been called to the Police Station in respect of the case registered in No. RC/22(AV2000. According to the petitioner, to this letter the Investigating Officer by another communication dated 22-3-2001 informed her that she has been arraigned as accused 4 in the said case and as such her interrogation as well as the examination of the documents in her custody is necessary. At this stage, the petitioner has approached this Court in the present petition under Section 482 of the Criminal Procedure Code for quashing the same.
3. Sri C.V. Nagesh, learned Counsel for the petitioner vehemently contended that the initiation of the proceedings in the aforesaid crime against the petitioner is illegal and without jurisdiction. As such the same insofar as the petitioner is concerned is liable to be quashed. Highlighting this contention, it is contended that under the Scheme of DSPE Act the initial jurisdiction of the CBI, as per Section 2 of the DSPE Act is confined to Union Territory and by virtue of Section 5 of the DSPE Act the powers and jurisdiction of the CBI (Special Police Establishment) can be extended to any area by the Central Government and even then as per Section 6 of the DSPE Act this extension of power and jurisdiction has to be consented by the Government of the concerned State to which DSPE Act is made applicable. It is contended that by looking into the provisions of the DSPE Act, especially Sections 3 and 5, there appears to be a mandatory requirement of a notification in the Official Gazette published so as to extend the jurisdiction of the CBI for investigation in a State. It is also contended that, if the entire records of the case are perused, it is apparent that initially the case was registered against other accused, viz., Smt. Shanthakumari, Sri Shastri and Sri Rathnakar, on the alleged consent of the Government. But, so far as the petitioner is concerned, there is no such consent obtained from or given by the State Government of Karnataka much less the publication of a notification in the Official Gazette. As such, the prosecution and initiation of the criminal proceedings against the petitioner by the CBI which has no jurisdiction by non-extension of the power, is totally illegal and without jurisdiction and hence on this count alone the entire proceedings are liable to be quashed. It is further contended that the consent dated 5-8-2000 relied upon by the respondent, even if it is valid against the accused Sri Rathnakar and Smt. Shanthakumari, in that sanction there is no reference at all to the petitioner and as such, mere taking cue from the words "and the suspect officials and any other public servant or person in relation or in connection with the said offences and other offences committed in the course of transaction arising out of the same", the petitioner cannot be lugged in as a co-accused. It is contended that this is not a consent at all so far as the petitioner is concerned. As such, it is argued that the registration of the case against the petitioner is ab initio void, as there is no mandatory notification under Section 6 of the DSPE Act read with Sections 3 and 5 as well as Section 21 of the Karnataka General Clauses Act is issued and, further, as there is no notification issued in this regard as per Section 2(m) of the Criminal Procedure Code and Gazette the proceedings are illegal and liable to be quashed. In this regard, the learned Counsel for the petitioner has relied upon the decision of the Delhi High Court in the case of Roshanara Begum v. Union of India and Ors. .
4. It is nextly contended that, without conceding for a moment, if it is accepted that the consent dated 5-8-2000 is a valid consent, the question would be whether the same can be used against the petitioner because of the fact that there is no specific mention of the petitioner either by name or by official designation. As such on a bald and vague consent there could not have been any prosecution of the petitioner for the offences alleged.
5. Nextly, it is contended that immediately on coming to know of the allegations and misappropriation and finding irregularity in the Zilla Panchayat, as per the newspaper publications, including the Lankesh Patrike, the petitioner herself, in fact, has lodged a complaint on 20-6-2000 with the jurisdictional police against one Shastri and Smt. Shanthakumari for the offences under Sections 120-B, 204, 409, 464 and 477-A of the Indian Penal Code which came to be registered in Cr. No. 129 of 2000. It is contended that, when there is already a First Information Report in respect of the alleged offence of misappropriation of the Zilla Panchayat funds, the said FIR now registered by the CBI in No. RC/22(A)/2000 is not maintainable. In this regard, relying upon the pronouncement of the Hon'ble Supreme Court in the case T.T. Antony v. State of Kerala and Ors.. It is contended that the registration of the second FIR in regard to the same incident and offence of misappropriation of fund of the Zilla Panchayat, Karwar, is not maintainable and as such the proceedings are to be quashed on this ground also.
6. Nextly, it is contended that now on going through the statement of objections filed by the CBI in the present petition it is amply clear that the proceedings have been initiated against the petitioner not only to malign her name and reputation, but also to harm the reputation of her husband, who is a Police Officer of IPS Cadre with the mala fide intention on the part of the Investigating Officer, Sri Ashok Kumar. It is contended that, if the entire tone of the allegations now levelled and as revealed from the statement of objections filed by the respondent is taken into consideration it is clear that the violation of the mandatory requirements like the consent, Gazette notification under the DSPE Act was only intended to humiliate the petitioner and hence the filing of the case is only with a mala fide intention. It is further contended that till the receipt of the communication dated 10-8-2001 calling her to appear before the CBI the petitioner was not made aware that she is being investigated as an accused in the crime and calling her to the Police Station which is clearly in violation of Section 160 of the Criminal Procedure Code also make clear the mala fide intention of the respondent. On this count also it is contended that the proceedings are liable to be quashed. Of these among other grounds, relying upon the pronouncements of the Apex Court in the case State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., and in the case of M/s. Pepsi Foods Limited and Anr. v. Special Judicial Magistrate and Ors., it is contended that the proceedings being illegal, without jurisdiction, without any prima facie case and being with mala fide intention are liable to be quashed.
7. On the other hand, Sri Ashok Haranahalli, learned Standing Counsel for the Central Government and the respondent-CBI, contended that so far as the question of consent and issuing of Gazette notification under the DSPE Act is concerned, there is absolutely no requirement under the law to obtain a consent of the State Government. Taking me through the provisions of Sections 3 to 6 of the DSPE Act, it is contended that the notification in the Official Gazette is only required to be issued by the Central Government under Section 3 of the DSPE Act which is for specifying the offences or the classes of offences which are to be investigated by the Delhi Special Police Establishment. It is submitted that neither under Section 5 nor under Section 6 of the DSPE Act there is any mandatory requirement of issuing Gazette notification authorising or giving consent to the Delhi Special Police Establishment to extend its area of operation by the State Government. Hence, it is contended that the question of absence of consent or notification will not arise in the present case so as to make the entire proceedings illegal or without jurisdiction. It is further contended that even otherwise, as per the consent dated 5-8-2000 issued by the State Government, even though only names of two accused, Sri Rathnakar and Smt. Shanthakumari are mentioned, the further clause and wordings "and suspect officials and any other public servant or person in relation to or in connection with the said office and other offences" clearly indicate that the State Government had given consent for extending the area of operation by the CBI in respect of the crime of misappropriation of the Zitla Panchayat fund at Karwar. It is submitted that this was done at the initial stage, when the Investigating Officer received credible information about the crime and that too without having any detailed information as to who are all the culprits ana as such the aforesaid clause has been introduced only to extend the consent in respect of those other unknown accused like the petitioner, who may be found to have played some role in the crime which can come to light only during the investigation also. Hence, it is submitted that merely the name of the petitioner is not mentioned in the consent order dated 5-8-2000, that does not mean that there is no consent at all. It is submitted that at the initial stage of investigation the Investigating Agency may come to know of the names of one or two accused and the role of other persons may not be known. As such the words "and suspect officials and any other public servant" has been deliberately used in the consent so as to give wide power of investigation to the CBI in respect of the crime and offenders concerned. As such, there is no illegality or absence of jurisdiction which can be a ground for quashing the proceedings, It is further contended that the importance of consent is a matter of policy between two Governments and it is not open to the accused to challenge the same. Nextly, insofar as the contention of the petitioner in respect of the maintainability of two FIRs is concerned, it is contended that, if certain dates relevant are taken note of viz., 19-6-2000 - Date of the letter seeking the sanction;
5-8-2000 - Date of the consent by the State Government for prosecution and extension of the CBI jurisdiction;
16-8-2000 - Registration of the FIR by the CBI; 20-6-2000 - Complaint by the petitioner against one Shastri and Smt. Shanthakumari (Cr. No. 129 of 2001),
and the fact that the petitioner is a high ranking IAS Officer and especially her husband is a police officer of IPS cadre, the possibility of their coming to know the investigation initiated about the misappropriation of the Zilla Panchayat fund it was likely that the petitioner herself rushing to the police and giving her complaint to the Karwar Police Station on 20-6-2000 so as to shield herself cannot be overruled. Moreover, it is submitted that merely because the petitioner has lodged a complaint on 20-6-2000 that by itself will automatically disentitle the CBI from registering a fresh case against the petitioner. Elaborating the same, it is contended that, if one peruses the alleged FIR of the petitioner dated 20-6-2000 is concerned, the said complaint is against Smt. Shanthakumari and one Sri Shastri, the Bank Manager, alleging that they have in collusion with each other falsified the Bank account of the petitioner by showing certain entries of deposit of money in her account and there is absolutely no allegation of any misappropriation of the Zilla Panchayat Fund. It is contended that even though at the end of the said complaint provision of Section 409 of the Indian Penal Code is mentioned, absolutely there is no allegation in this regard and as such the present First Information Report and case No. RC/22(A)/2000 by the CBI which is in respect of misappropriation of the Zilla Panchayat fund is not covered by the complaint of the petitioner. Hence, it is submitted that the ratio laid down by the Apex Court in the case of T.T. Antony, cited supra which is to the effect that no two FIRs in respect of the same offence are main-
tamable has no application to the acts of the present case at all. On the other hand, it is contended that the law laid down by the Apex Court in the case of Ram Lal Narang v. State (Delhi Administration), is attracted. It is submitted that there is nothing common between two complaints, one lodged by the petitioner dated 20-6-2000 against one Shri Shastri and Smt. Shanthakumari and the present initiation of the proceedings against the petitioner and others by the CBI. As such, as the two complaints are in respect of two different subjects or offences, the principle laid down in the case of T.T. Antony, cited supra, are not attracted. Nextly, it is contended that the allegations of mala fide on the part of the Investigating Officer are baseless allegations. It is submitted that absolutely there is no basic foundation by way of pleadings to show that the Investigating Officer has any personal enmity towards the petitioner.
8. Lastly, relying upon a recent pronouncement of the Apex Court in the case of State by Central Bureau of Investigation v. S. Bangarappa, it is contended that keeping in view of the growing menace of corruption on a large scale in the society that too by responsible officers of the Government itself it would not be just and appropriate to quash the proceedings at the initial stage of investigation itself and thereby scuttle the proceedings so as to thwart the investigation without giving the Investigating Agency any opportunity to substantiate its claim. Further, it is contended that, as laid down by the Apex Court itself right from the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors., till the pronouncement of the landmark judgment in the case of Ch. Bhaj'an Lal, cited supra, the power and jurisdiction of this Court to exercise the jurisdiction under Section 482 of the Criminal Procedure Code is to be exercised sparingly and in exceptional circumstances. It is contended that taking into consideration the dimensions of the crime in question, the criminal mode in which lakhs of rupees contributed by the Central Government towards the Zilla Panchayat fund for the purpose of upliftment of needy and poor people has been misappropriated, this is not a fit case to quash the proceedings at the initial stage itself and hence it is prayed that the petition be dismissed.
9. I have heard the learned Counsels on both sides in detail, perused the records of investigation made available.
10. Before proceeding with the merits of the case, as rightly pointed out by the learned Counsels on both sides it would be just and proper to remind myself the scope and jurisdiction under Section 482 of the Criminal Procedure Code.
11. Right from the pronouncements of the Apex Court in the cases (1) Smt. Nagawwa, supra, (2) State of Karnataka v. L. Muniswamy and Ors., (3) State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. , (4) Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. and of course in the landmark pronouncement in the case of Bhajan Lal, supra, which are followed in all the subsequent pronouncements. No doubt, it is laid down that the Court has got inherent jurisdiction to quash criminal proceedings at the initial stage itself, like the one when process is issued or in some cases when just FIR is filed. But, keeping in view the fact that in almost all these cases, investigation is in progress and not complete the Apex Court has cautioned that such inherent jurisdiction should be exercised very sparingly and with circumspection that too in rare case. It is also well-settled that the Court will not be justified in embarking upon a roving enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint nor it is permissible to appreciate the investigation report, charge-sheet material and in most of the cases at the stage incomplete investigation material as if a Trial Court or even as an Appellate Court. The Apex Court has also laid down that this extraordinary or inherent jurisdiction under Section 482 of the Criminal Procedure Code does not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. Considering all the earlier pronouncements, in the case of Bhajan lal, cited supra, the Apex Court by way of illustration gave guidelines in respect of cases or situations wherein such inherent jurisdiction can be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice for quashing the proceedings. These guidelines and illustrations are as follows:
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
(8) Where allegations in the complaint did not constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary power or inherent powers, quashing of FIR was not justified.
12. Keeping in view these guidelines and the principles laid down in the aforesaid cases, let me consider the case on hand.
13. At the outset, let me consider the first contention of the learned Counsel for the petitioner regarding registration of case as void ab initio on the ground of absence of notification under Section 6 read with Sections 3 and 5 of the DSPE Act. To appreciate this contention it would be necessary to look into the provisions of Sections 2, 3, 5 and 6 of the DSPE Act. Section 2 prescribes constitution and powers of special police establishment. As per this provision, the territorial area of operation of such special force basically is in the Union territories. Section 3 prescribes that the Central Government may, by notification in the Official Gazette, specify such offence or offences which can be investigated by such special police force or establishment. Even though as per Section 2 of the DSPE Act the area of operation is basically restricted to Union territories, under Section 5 of the DSPE Act the same can be extended to any area in India including Railway area not being a Union territory by a specific order. But, this power and the provision is further controlled by Section 6 of the DSPE Act which in turn requires that such extension of area of operation will not be operative or cannot be utilised unless the concerned State Government to which the DSPE Act is being made applicable gives its consent.
14. Thus, it is undisputed that even though the Central Government by an order extends the area of operation of the DSPE Act to any other State not being Union territory it will start operating only after the concerned State Government consents for it. The contention of the learned Counsel for the petitioner is that there is no consent given by the State Government to investigate the case against the petitioner unlike what is done in respect of the other two co-accused. Inviting my attention to the order of consent dated 5-8-2000 it is contended that by this notification the State had consented for registration and investigation of the case in respect of only Sri Rathnakar, Senior Manager of Corporation Bank, Karwar and Smt. Shanthakumari, KSAS, formerly Chief Accounts Officer, Zilla Panchayat, Karwar, for the offence punishable under Section 120-B read with Section 420 of the Indian Penal Code and further read with Section 13(2) read with Section 13(1)(c) and (d) of the PC Act and there is no mention insofar as the petitioner is concerned and any sanction in the absence of specific consent to proceed against the petitioner the present investigation is illegal one.
15. On a perusal of the provisions of Sections 2, 3, 5 and 6 of the DSPE Act, in my view, the emphasis has to be laid that power and jurisdiction to investigate under these provisions of the DSPE Act are in respect of the offences and not the offenders. If there is an offence committed, the required consent or notification, as the case may be, would be in respect of the offence and there need not be even mentioning name of any offender, because at the stage of finding of the names of all the offenders and particulars of all the offenders are not clear or may not be available also. It is only investigation which will bring to forefront the names of possible offenders. Hence, the contention of the learned Counsel for the petitioner that the name of the petitioner is not found place in the consent sought as per the communication dated 5-8-2000 has no merit. As I am of the view that the necessary consent to be given by the State Government is in respect of the offences and not offenders. Merely because in the present consent dated 5-8-2000 the names of only two accused are mentioned and not of the petitioner does not mean that there is no consent at all insofar as offence is concerned. If one peruses the order of consent it is clear that it pertains to and is in respect of an offence of cheating, criminal conspiracy and Section 13(2) read with Section 13(1)(c) and (d) of the PC Act in respect of the funds of Zilla Panchayat allotted by the Central Government. Merely because at that stage incidentally the names of two of the suspected accused are mentioned that does not mean that even if in future investigation reveals the names of other persons involved in the crime like the petitioner the consent is bad or for that matter fresh consent is required. Even otherwise, as rightly pointed out by the learned Counsel for the respondent, even in the said communication dated 5-8-2000 itself after mentioning of the names of the two accused, viz., Rathnakar and Smt. Shanthakumari, the following words "and suspect officials and any other public sexvants or persons in relation to or in connection with the said offences and any other offences committed in the course of the transaction arising out of the same fact in regard to this case" are mentioned and thus it clearly explains and saves such a situation and hence in my view there is merit in the contention of the learned Counsel for the petitioner in this regard.
16. Similarly, insofar as the requirement of Gazette notification in respect of such consent under Section 6 of the DSPE Act is concerned, according to the learned Counsel for the petitioner, by reading Sections 3 and 5 of the DSPE Act there is a mandatory requirement of a notifica-
tion, it is submitted that Section 3 is the parental section with further provisions under Sections 5 and 6 of the DSPE Act giving or prescribing territorial jurisdiction of the Special Police Force. According to the learned Counsel for the petitioner, if the DSPE Act requires Gazette notification for exercising the power and jurisdiction under Section 3 similar Gazette notification must be published insofar as exercise of jurisdiction and power under Sections 5 and 6 also. In this regard, learned Counsel for the petitioner has relied upon a decision of Delbi High Court in the case of Roshanara Begum, cited supra.
17. On a careful perusal of the provisions of Sections 3, 5 and 6 of the DSPE Act, in my view, this contention is again devoid of merits. No doubt, under Section 3 of the DSPE Act, the Central Government is required to empower or specify the offences or class of offences which are to be the subject-matters of investigation by the Delhi Special Police Establishment and this has to be done only by publication of notification in an Official Gazette. But, no such mandatory requirement is there insofar as the extension of power under Section 5 or the consent of the State Government under Section 6 is concerned. In my view, provisions of Section 3 of the DSPE Act does not control or is a parental provision so far as the other Sections 5 and 6 are concerned. As the words under Sections 5 and 6 denote the power under these provisions can be exercised by just an order or communication as tbe case may be. So far as the reference to the Roshanara Begum's case, cited supra is concerned, that was one under the provisions of the Land Acquisition Act. Referring to Sections 4 and 6 of the Land Acquisition Act, it has been held that once there is a Gazette notification required under Section 4 of the Land Acquisition Act for acquisition of land, there must be another Gazette notification under Section 6 of the said Act for withdrawal of such notification issued under Section 4 of the said Act. It is to be noted that the provisions of Section 6 of the Land Acquisition Act has a practically annulling effect of the notification under Section 4 of the said Act and as such rightly it has been held that, if the parental section like Section 4 of the said Act requires Gazette notification, the order under Section 6 annulling the effect of the parental order under Section 4 of the said Act is also required to be by Gazette publication. In my view, there is no parallel comparison to these provisions of the Land Acquisition Act visa-vis Sections 3, 5 and 6 of the DSPE Act. It is also to be noted that, when under Section 5 of the DSPE Act there is no requirement of Gazette notification by the Central Government for extending the area of operation of the Special Force and when as per Section 6 of the DSPE Act it is left to the wisdom of the State Government whether to accept such extension or not, I am of the view that Gazette publication in this regard either under Section 5 or 6 is not at all necessary. As such, the further contention of the learned Counsel for the petitioner that, when the State Government itself in the communication dated 5-8-2000 has treated it as a notification and hence it is deemed to be necessary is meaningless. Hence, I see no reason to hold that in the absence of Gazette notification under Section 6 of the DSPE Act filing of the case or the investigation automatically becomes ab initio void.
18. Nextly, the contention regarding maintainability of two FIRs as raised by the learned Counsel for the petitioner is concerned, it is submitted that on coming to know the illegalities and irregularities of the funds of the concerned Zilla Panchayat, the petitioner herself has lodged a complaint on 20-6-2000 with the jurisdictional police against one Shas-tri and Smt. Shanthakumari in Cr. No. 129 of 2000 and hence relying upon the pronouncement of the Apex Court in T.T. Antony's case, cited supra, it is contended that registration of the second FIR in regard to the same incident and the offence of misappropriation as in the present case by the Special Police is not maintainable. On a perusal of both the complaints i.e., one filed by the petitioner and the other now in question, it is to be seen that in the first complaint filed by the petitioner the entire allegations against the accused therein are in respect of falsification and forgery, etc., of the personal accounts maintained in the Bank by the petitioner as well as in respect of the records of the Bank itself. Whereas, the present case is in respect of the misappropriation of the Zilla Panchayat account, in the first complaint, there is absolutely no allegations regarding the misappropriation of the Zilla Panchayat funds and accounts by anybody which is the case in the present First Information Report, Hence, in my view, the principle laid down in T.T. Antony's case, cited supra, are not at all applicable to the facts and circumstances of the present case, as in my view, there is nothing in common between these two cases. In T.T. Antony's case, supra, the Hon'ble Supreme Court has clearly laid down that if the offences under the two FIRs are one and the same it is only then the 2nd FIR is not maintainable and not otherwise. On going through both the FB3s one filed by the petitioner and the present one, there is no common factor as to the offence is concerned, the principles laid down in T.T. Antony's case, supra, are inapplicable to the present case.
19. Now going into the merits of the case, it is contended that there is no prima facie material or allegation in the First Information Report and even if the entire case, if taken on face value and accepted, the contents prima facie constitute no offence against the petitioner. I have perused the First. Information Report in detail which clearly indicates that the funds allotted by the Government of India to the Zilla Panchayat, Karwar, for implementing various governmental programs like upliftment of poor and needy and for providing self-employment, etc., have been misappropriated by various officials of the said Zilla Panchayat colluding with the Bank officials by creating Demand Drafts in the name of fictitious persons or by illegally diverting the funds to the personal accounts of the officials, etc. Undisputedly the petitioner at the relevant point of time was working as the Chief Executive Officer of the Zilla Panchayat, Karwar, and as such was responsible for the entire transactions. She was also the Ex officio Director of Varada Grameena Bank in which the funds of the Government of India received came to be deposited. The investigation materials prima facie show that the petitioner as the Chief Executive Officer has withdrawn the funds by way of cheques and the same were deposited in her personal SB Account from time to time and then they were withdrawn almost on the very same day or on the next day. Similarly, from the said 5 accounts of the Zilla Panchayat with the Corporation Bank there were transfers of funds from the said Bank to the Varada Grameena Bank and in turn to the personal account of the petitioner. According to the Investigating Agency, these transfers being without any basis or authority and further act of transfer of the Zilla Panchayat amount to the personal account of the petitioner and withdrawing the same by the petitioner as revealed from the records of the Bank would clearly indicate the prominent role played by the petitioner in this regard. It is to be noted that all these factors as found from the FIR and the investigation materials so far collected prima facie indicate to me that there is some suspicion regarding the involvement of the petitioner in the crime. Of course, I have to add that as at this stage when the investigation is still not complete, mere suspicious circumstances or indication of a prima facie case would be sufficient to launch prosecution against the suspected persons and in the light of the material of the investigation disclosed, I find that there is clearly indicative suspicious material against the petitioner, the contention of the learned Counsel for the petitioner that there is no prima facie indication of the offence committed by the petitioner is devoid of merit. So far as the other contention that the petitioner is an IAS Officer and her husband is police officer belonging to IPS cadre and as such to malign their name and reputation with mala fide intention the present case has been filed, in my view, is totally without any basis. There is no prima facie material placed before this Court to show that the Investigating Officer had any personal malice or ill-will towards the petitioner or her husband so as to go to an extent of lodging a false case of this magnitude. According to the learned Counsel, the fact that the Investigating Officer by a written communication dated 5-8-2000 had called upon the petitioner to be present in his office is indicative of mala fides, in my view, is too far fetched theory. In the course of the investigation of a crime the police officer is required to find out from all the circumstances as to the crime and the criminals. As the entire investigation material discloses initially, there was some suspicion against Rathnakar and Smt. Shanthakumari and possibly the petitioner being the Chief Executive Officer of the Zilla Panchayat, the Investigating Officer though fit to the befitting her status requested to co-operate with the investigation. But, merely thereafter after all the investigation she has been included as an accused does not mean that there was any mala fides on the part of the Investigating Officer. Taking into consideration all these aspects in detail and keeping in view the various pronouncements of the Apex Court referred to earlier, in my view, as there is prima facie material to indicate the alleged role of the petitioner in the crime concerned especially when the investigation is still not complete, in my view, this is not a fit case to exercise the inherent jurisdiction under Section 482 of the Criminal Procedure Code to quash the proceedings which will have practically an effect of scuttling of investigation at the earlier stage itself. Hence, I am of the view, that this is not a fit case to quash the proceedings.
20. Accordingly, this petition is dismissed as devoid of merits.