Karnataka High Court
Mylarapa S/O Late Chikkappaiah vs The State By Lokayuktha Police on 22 April, 2010
I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22%"? DAY OF APRIL 2031)::
BEFORE
THE I-ION'BLE MR JUSTICE K N I
CRIMINAL PETITION Ng3."'22S4_ OF 2696 V
BETWEEN: I I I I I A
MYLARAFA
S/O LATE CHIKKAPPAIAH,
AGED ABOUT 57 YEARS,
INSPECTOR OF POLICE,"w~._
VVIP SECURITY, ~ F_ 1
C/0 COMMISSIONER OF POLICE, '
BANGALORE CITY, -- " .
BANGALORE; PETITIONER
{ BY SR1. SURESHVS'v--.JOSHJA,'ADAVO'CA'I'E ]
AND:
TI-IE STAI'E 131/'. POLICE,
KOLAR. .. .RESPON DENT
(BY;S"RL T M GAYATHR1, ADVOCATE]
_ THISV'C:RIMINAL PETITION Is FILED U/S. 482 CR.P.C
B"{"__TH'}3 fAI:_avQCATE FOR THE PETITIONER FRAYING THAT
THIS HQ.N'B:LE COURT MAY BE PLEASED TO SET ASIDE
THE ENTIRE PROCEEDINGS, INCLUDING INVESTIGATION
AND " SANCTION GIVEN BY THE SO--CALLED
V' AUTHORITIES AND FURTHER TO QUASH THE
D' CPRQACEEDINGS AND ALSO THE PROCESS DT. 19.5.2006
ISSED BY THE PRL. S.J., KOLAR IN PCACC NO. I/2006,
PENDING ON THE FILE OF PRL. S.J., KOLAR.
'!
THIS CRIMINAL PE"1giTION COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT MADE THE
FOLLOVVING:
O R D E R
In this petition flied under Section 482..:Ct1:f':P;vC., the petitioner herein has sought for proceedings initiated againsthim It No.1/2006 on the file of the Kolar.
2) The petitioner employee of the poiice department,V'Gove1*nnie'nt_ Karnataka, and at the relevant "point I he was Working as Police Inspector, Ronbertsflonpet Police Station, KGF. On receipt » of -s'o1ne'credib_le information about the petitioner having a1fxi'azedv{f.ea1th disproportionate to his known sources of inco1:.1eI, the Lokayuktha Police conducted raid on the resicieiitiai house of the petitioner on 23.02.1989 and 'stated to have seized gold and silver articles, bank 'deposits and other documents worth Rs.12,61,242-72. 3 On the basis of the said raid, case was registered in Crime No.1/ 1989. After prolonged investigation spreading for nearly 5 years, charge sheet cainefito be filed on 07.09.1994 before the Special Juage,fI_§eeier,,, against the petitioner for the offences pun.ishabie"under _ Section 13(l)(e) r/W. Section 19(2) Corruption Act (for short On the "charge sheet, the learned took cognizance of the 0--._._o:ffen'_ces_:alieged and directed registration of the case--.~-.:.C'onseauently;.{case in PCA.CC. No. 6/i994;"j;carrie"--to'--b'e registered and summons were issuedlto" the petitioprierf. ,, p 0' _ 3) Iipon "rec-e'ipt"00Vof the summons, the petitioner before 'tier-<:~'iearr1ed Special Judge and pleaded rforithe charges levelled against him. When t'1'i'$:'VCaS5?"V0\lii{£1::S set--down for trial, on 03.07.2000, the petitioner filed an application seeking discharge on the ground that the sanction for __p§rosecution issued by the Inspector General of Police 1:.
4 was without jurisdiction and authority. as such, there is no Valid sanction for prosecution. The prosecution opposed the said application. The learned Special Judge after hearing both sides, by a detailed 05.02.2001 held that the sanction orders._i§"--not_.:aSj/alidK one inasmuch as the officer; rhga-I"
sanction was not cornpetent to accord suchV"sani;:ticn."'tg and therefore, there is no sanction. 'f_orv'prosecution. In this View of the '«l.ea_ri:.ed Special Judge ordered discharge of petitiogner;/'acc_u'sed. However, while the'-accused. the learned Special Judged?_Ql5served':'."that._:'ict,flis "left to the prosecution to initiate appro'pria'te proceedings in accordance with law, if desired'; "" "As the prosecution did not initiate fifesh :'proceedings in accordance with law within a from the date of order of discharge, the petitioner filed application on 16.07.2001 under Section of Cr.P.C. seeking return of seized articles and documents.
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4) After hearing both sides, the learned Special Judge by order dated 04.08.2001 allowed the said appiicatiori and directed the Lokayuktha Police. to return the seized properties in PF Nos. 1/ to the petitioner/accused subject to indemnity bond to the worth of with a further conditions' that petitionierypl produce the said property soP"returned'tohimlfgeither to the Court or to the poliicepat "tiipne'~v\(ithin a period of six months from that-datie, V uriless either an appeal is preferred" against him is initiated.
HOW€'\}€I'. ._ then'-.,,juaforesaid period, no fresh proceeding' ivas iiiitiatedbtl by the Lokayuktha Police. But 'arrapplication came to be filed by the Prosecutor seeking revival of the case and for. of process to the accused interalia on the Agrouizidrthat in Crl.R.P. No.51/1999, the High Court on 30.06.2003 has ruled that Inspector General of Police is .. ,,_..competent to accord sanction for prosecution. The said application came to be rejected by a detailed order dated 6 31.03.2004 holding that once the accused is discharged, question of reviving the proceedings does not arise, as the Court has no power to review its~,own order and the remedy for the prosecution to, initiate fresh proceedings. In spite of orden _, fresh proceedings was not ini':;iate_d,' «-Viristead, appiication dated 25.02.2005 carn.e'~to Section 19 of the Lokayulcthaiigct and'S.eg_ctions':,462 and 465(2) of Cr.P.C. car1'i_e"':to to re-open the case and toissue 's.11fr_1:nons:,to'.the'aceused inter alia on the" 0 H"on'ia1e Supreme Court in Criminal ' Appea£§..""0V91:/02000.4. (Karnataka Police Vs. T. Venk_atesh'he1d that if the sanction order is onxHth'at"ground the accused should not be acquitted and that the prosecution can be obtaining fresh sanction, therefore, the prosecution after obtaining proper sanction order Wants _to.._C_jontinue the case. For that reason the prosecution wsiought for issue of summons to the accused. On the said application, the Court issued notice to the /7 tax"
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been made to undergo trauma and fear psychosis for the last 20 years and therefore, the proceedin.gs~.._4riow initiated is Vitiated and is Iiable to be course, the grounds regarding the,_Validitjf" if sanction order have also been raisedif *
6) I have heard learned counsel appearing T.M. Gayathri, learned for the Karnataka 3:_Perulsedl'xth'e'"records pertaining to PcA.cQ5 5 :1 2 2006.
ll for the petitioner submitted that the iieragneapspe¢,:ai;;uage is not justified in taking of Athepffences alieged in the fresh charge lfiieldifbelatedly and even the manner in which the learnedv. Judge has taken cognizance would indicat,e3that he has not applied his judicious mind to lflthe'inaterials placed on record and has mechanically Wtaken cognizance of the offences alleged. It is his further submission that though the proceedings was /'I 9 initiated by the raid conducted in 1989, it culminated in charge sheet, filed nearly about 5 years though the petitioner was discharged Special Judge in the year 2001 giving oppo'1tunit3rV'to the ' prosecution to initiate fresh pr:oceedings..ir1. accuofdaiivce with law, fresh proceedings was not instituted.'for..n3early~ . if 5 years and this delay the of the petitioner conferred' 21 of "the Constitution, and th.is.:._delay_ v_ unbearable mental tension not only to him but'=als:cj-;V 1:6 'fo't_her.pv'.members of his family besides tremendous defamation heaped on them. It is, also hisA'sub.mission that on account of this inordinate Vvdelay;«vh.e.'has suffered great financial loss _thi.s'«has"'affected his prospects in the Department andit' had.'."pad*.?erse effect on his family members. It is 'V his submission that the petitioner had llftindamental right of speedy trial and the delay in '--«lA.-'initiating fresh proceedings has violated this right, 'Eitherefore, the entire proceedings initiated is liable to be l0 quashed. In this behalf, he sought to place reliance on the judgment of the Supreme Court reported in 2001 Crl.L.J. 4718 [Mahendra Lal Das Vs. State ofjihar and others] and 2002 (1) sec 153 Chaudhary Vs. State of Bihar and others4]_;~»._ V Q
8) On the other learned Standing __CourIs_el= ° 'jg lt1-also Respondent/Lokayuktha colntenededlll 'there is absolutely no delay the "the respondent in initiating the fresh proceiedinés the delay alone cannot be all'factor.yfortquashing the proceedings. She tried to delay in the proceedings cannot be p 4eg,jttI--ibuted"'toV'the respondent, but on the other hand, the of 5 years from the date of the raid to of the charge sheet is attributable for thevoi-uminous investigation required to be done in the t:ase this nature: According to her, the period 'betvtreen filing of charge sheet upto the date of discharge it Wvvas clearly attributable to the petitioner himself, as he /1 11 remained absent continuously for several hearing dates and the application for discharge came to be ti.le_:d._only when the case was set-down for trial. ' justify the further delay by statirig.that after if " V discharge came to be passed, the revive the proceedings by way orvtheuoth'e.r"'by filing". V applications before the le.a.rried"'~.Special-_Judge and ultimately, a fresh filed in the year 2006. was trying several proceedings can be revived" was found that the revived as per law, fresh charge sheet' be filed and therefore, the cannot--~be quashed on the ground of delay. It submission that there is absolutely to indicate that the delay in the trial of the case is exclusively attributable to the respondent the delay has resulted in any loss to the petitioner nor any circumstance brought~out to indicate that the petitioner has suffered rnenta} trauma, fear (3 12 psychosis or tension or any loss of progress in his career, therefore, there are no grounds to quash the proceedings. She, in support of her submission, sought to place reliance on the decision of the reported in 2001 Crl.L.J. 1242 [Seeta A Shashittal and another Vs. and others]. She further Submitted"'that,,, in the case of this nature be'*laborious as it involved voluminous records t;_o..be_'*co'1iected, therefore, on the basis ofthe de1ayjfbetvvee'n'v_ to 1994, the date of 'sheet'}cann.ot be a ground to quashifthe $3} of Seetha Hemachandra s:u.p1'a, Court, having regard to the facts of that case, has held that, the crirrifinal.prosecution cannot be quashed merely on the groundfof delay highlighted by the appellants therein. .ggl"Io_W"ever, in the case on hand, as noticed earlier, by __order dated 05.02.2001, the learned Special Judge held that the sanction order issued by the Inspector General 13 of Police is not valid, as he had no competence to issue such sanction and proceeded to discharge the accused on the ground of want of proper sanction. order of discharge was not questionedm"'bY"--- respondent, therefore, it becarnepppfinal. r""i¢1ovv,ei2'er,_ the " "
learned Special Judge, while orderingi' petitioner, reserved liberty"to"--the prosecutiorilippte-..initiate'..S' appropriate proceedings inpp_acl(:ordance' "w--1',th if so desired. In the light""oaf--.tl:,iS§'r\.Vl.ihe'rty,CV:accorded by the learned Special' .Judg'e,'V'tl*i;e ought to have initiated"i'fre'sh prosecution.'"within a reasonable time thereaJfter,_ ' I-io'W.eVerV,i'iA..pinstead of initiating a fresh prosecution afterv,obta;ining a Valid sanction order from c,ornpetentV"anthority, the respondent went on before the learned Special Judge seeking .to€-.V.1'eviVe the proceedings, one on the ground that Court in a Criminal Revision Petition held that thetinspector General of Police is competent to accord ., pvsanction for prosecution and at another time on the ground that the I-Ion'ble Supreme Court in a Criminal I4 Appeal has held that the accused cannot be discharged or acquitted for defective sanction orderi«j"~-i:'_"These applications appears to have filed unmindful that the Sessions Judge / Special,.JL_1_dge_' 'had it ' it review for reviewing his own order amt on'ce"'th_e is discharged, he/she canniotxxbeliAdiifecte¢fiflto.;vVfaces; triaill unless a fresh proceedings....is'Jinitiatedflby caring the defects, on which In the process, the respondent' 5 years.
Thus, there\ __5Wyears. It is only thereaftery a ch"ar~ge'§ sheet came to be filed. Thus, :v:'ih(§i':_€ delay in initiating fresh it it it is welI--settled law that the accused right of speedy trial and this i _ concept V-._'is=r'ead into Article 21 of the Constitution. it .}i"herefore,: the petitioner had right to insist speedy trial. i._éF'o_r"a--iper'iod of 5 years, after he was discharged at the of the learned Special Judge, there was no case 15 pending against him, but, suddenly thereafter, on account of lodging of the fresh charge sheet, the proceedings is sought to be re~«started petitioner.
11) in Mahendra La! Das's case.V.'c'itedd«t.::supra', ..
the Horrble Supreme Court while oonfsideririg the-,_case of failure on the part of.»ti1.e Goyernmeine acicodrdidir. sanction for prosecution for yea1"s,t_he1d§ that the proceeding is liable Vtofibe the ground that the Constitutional maiidate is violated. Similarly, in'$&arirar1a.ii&..,V__Chaudhary's case cited supra, the Supreme quashing of the criminal proegzeedings onjflthe ground of delay in triai, as sanction prosecution was granted about 11 years after the ~Ofi"e_nc"e reconsideration to the case of the accused. "
12) In the case on hand, the case was cornmenced by raid conducted on 23.02.1989 and now We are in the year 2010. Nearly 21 years have elapsed ('7 16 since beginning of the case. No doubt, as could be seen from the order sheet in PCA CC 6/ 1994, on several occasions the accused remained absent. Hoxyeyer.
ultimately in that case, he was discharged.' learned Special Judge. Now he is again _ face the trial for the same ;, petitioner was working asva.gfoliéce..'vir;spect'or£asA. date of initiation of the case°.*@'1"hVe having gone on for neariy said that it has no effect on hisA.career.pros.pects_ affecting his financial'~an'd- personal» 'aspectisfé Judicial notice of the fact can be ta1;e'n_f,'ygperson whenever faces criminal charges "trial, A'i1e"-Would be certainly under great " _ iand fear'p--sychosis. That is the reason why it is heldi. accused has right of speedy trial. Whenever person is accused of certain offences, at the ear1ies.t__A'he should be told that he is either guilty or not gu_i1t.y of such offences. The accusation cannot be wéontinued for a long period, as it would subject the person to great amount of trauma and fear psychosis. 17
13) Having regard to the facts and circumstances of this case, I am of the con.sid_ered opinion that the long delay from the date of ' the case in the year 1989 upto _date_0of "
charge sheet in the year 2006 ri'ott?l' is sufficient for holding thattfiizs has L' speedy trial, to which the to and thus it has violated .cArticle 21 of the Constitution," 4_'fh._eref:ore:; cannot be allowed " l V *14)_ .' which the proceedings is liable to could be seen from the first daygorder sheetiri PCA cc 1/2006, the learned Special to have not applied his judicious mind beforell'tal:i.ng:;"cognizance of the offences alleged. " It is well-settled law that a judge or a V."l'_jAMagistrate for the purpose of taking cognizance is ___required to apply his judicious mind to the materials placed before him and he should form an opinion that 19 indicate that the process of taking cognizance has not been carriedwout in accordance with law. Therefore. even on this ground the proceedings cannot be to continue.
16) in View of the above, the petitiointis' The prosecution launched againstgé ' the 'pet_i:tiour1_e'r'V PCA.CC Ti/2006 on the fiie of 1':he"'vPr'incfipa'I:'Sessio1:s"=up Judge and Special Judge, hereby" squashed.
Office to send back the---reco.rCis_to Court below.