Karnataka High Court
Dattatrey S/O Appasaheb Suryavanshi, vs The State Of Karnataka, on 8 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 8th day of August 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Petition No.100336/2017
Between
Dattatrey,
S/o Appasaheb Suryavanshi,
Age: 63 Years, Occ: Agriculture &
Retd. Govt. Servant,
R/o: Mudhol, Tq: Mudhol,
Dist: Bagalkote. ...Petitioner
(By Sri. C.H. Jadav, Senior Counsel for Sri Shriharsha
A.Neelopant, Advocate)
And
The State of Karnataka,
Through the Special Public Prosecutor,
High Court of Karnataka,
Through Deputy Superintendent
of Police, Karnataka Lokayukta P.S.,
Bagalkote. ...Respondent
(By Smt. Nirmala Sutagattimath, Spl. PP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., seeking to quash the supplementary charge-
sheet dated 09.12.2016 against the petitioner in Spl.
Case No. 26 Of 2012 on the file of Prl. District and
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Sessions Judge, Bagalakote, for the offences punishable
under Section 13(1)(e) read with 13(2) of the Prevention
of Corruption Act, 1988 and drop the proceedings as
against the petitioner in so far as the supplementary
charge-sheet is concerned.
This Criminal Petition coming on for Final Hearing
on 07.06.2017, having been heard and reserved for
Orders, this day, the Court made the following:
ORDER
This is a petition filed by the petitioner/accused under Section 482 of the Code of Criminal Procedure praying the Court to quash the supplementary charge-sheet, dated 09.12.2006, against the petitioner in Spl. Case No.26/2012 on the file of Principal District and Sessions Judge, Bagalkot, for the offences punishable under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act', for short), and drop all the proceedings as against the petitioner.
2. Brief facts, as pleaded by the petitioner/accused in the petition, are that the 3 Lokayukta Police filed charge-sheet in connection with Bagalkote Lokayukta PS Crime No.13/2008 alleging that the accused, being a government servant, had amassed wealth of Rs.2,80,55,675/- disproportionate to his known source of income to the tune of 126.03% of his known source of income. Accordingly, the concerned police have filed the charge-sheet/final report alleging the offences under Section 13(1)(e) read with Section 13(2) of the Act. The concerned police carried out investigation for check period from 01.08.1979 to 26.11.2008 and filed the charge-sheet dated 30.01.2012. After filing the charge-sheet/final report, again the Lokayukta Police sought for permission of the Trial Court to undertake further investigation in the matter as per Section 173(8) of the Code of Criminal Procedure, alleging that the petitioner, after his retirement from the service, got the benami properties in his name and in the name of his son from his brothers and mother under gift deeds. Accordingly, the Trial 4 Court, by order dated 19.07.2016, was pleased to permit the respondent-Lokayukta Police to conduct further investigation in the matter. Thereafter, the respondent-Lokayukta Police abruptly filed the supplementary charge-sheet alleging that the accused had amassed additional wealth worth Rs.87,17,276/- amounting to 39.13% additional wealth as compared to earlier charge-sheet. Accordingly, in the supplementary charge-sheet Statement-B is annexed showing the details of the properties which have been taken into account for filing the supplementary charge-sheet. Hence, the petitioner, being aggrieved by the submission of the supplementary charge-sheet against him, in Bagalkote Lokayukta P.S. Crime No.13/2008 and in Special Case No.26/2012, has approached this Court invoking the jurisdiction under Section 482 of Cr.P.C. The petitioner/accused has challenged the legality and validity of conducting the said investigation 5 and filing of the supplementary charge-sheet on the grounds as mentioned in the petition.
3. Heard the arguments of learned Senior Counsel appearing on behalf of the counsel on record for the petitioner/accused. So also, heard learned Special Public Prosecutor for the respondent-Lokayukta.
4. Learned Senior Counsel submitted that conducting investigation in the case, after filing the charge-sheet/final report at the first instance, amounts to conducting fresh investigation or reinvestigation in the matter and it is not further investigation. He also made the submission that as per Section 173(8) of Cr.P.C., further investigation of the case is permissible, but not the fresh or reinvestigation. Learned Senior Counsel submitted that while conducting the investigation, at the first instance, before filing the charge-sheet, the prosecution had taken into consideration the check period from 01.08.1979 to 6 26.11.2008 and considered the properties of the petitioner/accused, which properties were said to have been possessed or acquired during the said period. Learned Senior Counsel also drew the attention of this Court to clause (e) of Section 13(1) of the Act and made the submission that possessing pecuniary resources or property disproportionate to the known source of his income is having the reference to the period at any time during the period of offence. Hence, the learned counsel submitted that those properties which are said to have been acquired by the present petitioner during the check period were already considered by the Investigating Officer during the investigation and then the charge-sheet was filed. Learned Senior Counsel made the submission that sofar as the properties which the petitioner got after his retirement by way of gift deeds executed in his favour by the mother and brothers of the petitioner. Hence, learned Senior Counsel submitted that those properties which were 7 gifted to the petitioner after his retirement cannot be considered to be the properties acquired during the tenure of his office. Hence, those properties cannot be considered to be disproportionate assets of the petitioner herein. Learned Senior Counsel submitted that there was a suit filed in O.S. No.435/2000 and in the said suit a compromise was entered into between the parties and later the said properties were amalgamated and given R.S. No.179/1 measuring 2 acres and R.S. No.179/2 measuring 8 acres 38 guntas, and out of the same 1 acre 39 guntas have been mutated in the name of mother of the accused namely Smt. Sonubai and R.S. No.179/2 measuring 8 acres 22 guntas has been mutated in the name of the brother of the accused namely Ashok and in turn R.S. No.179/1 measuring 1 acre 35 guntas is transferred in the name of Sri Ashok. Learned Senior Counsel further made the submission that on 03.11.2015 as per ME No.H.45, R.S. No.179/1 measuring 1 acre 35 guntas and as per ME 8 No.H-46 R.S. No.179/2 measuring 8 acres 2 guntas have been mutated in the name of the accused. Learned Senior Counsel also made the submission that Ashok the brother of the petitioner herein and the petitioner both have exchanged their respective properties by way of registered gift deeds. Ashok Appasaheb Suryavanshi has gifted the property bearing R.S. No.179/1 measuring 1 acre 35 guntas and R.S. No.179/2 measuring 8 acres 32 guntas in favour of the present accused. Learned Senior Counsel made the submission that it is the arrangement between the accused and his brother for their convenience. It is also the submission that the learned Senior Counsel that when the investigation was done in the matter originally, all these properties were very much in existence and the have been considered by the Investigating Officer, therefore, the question of again taking into consideration these properties, on the premise that the accused held those properties benami in the names of his mother and 9 brother and other family members, does not arise at all. Learned Senior Counsel further submitted that the relevant period for taking into acquisition of the properties is the check period which has been mentioned by the prosecution which he alleged to have acquired when he was serving as a public servant. Learned Senior Counsel made the submission that the accused has already retired from service in the year 2013 and subsequent acquisition by any means cannot be the subject matter. It is also the submission of the learned Senior Counsel that before passing the impugned order for conducting the further investigation, no opportunity was given to the petitioner to account as to how he acquired those properties. Hence, in view of these things, learned Senior Counsel lastly, made the submission that whatever the permission granted by the Special Judge on the application moved by the Investigating Agency is not of further investigation but it amounts to fresh or reinvestigation of the matter which 10 is not permissible under the law. Hence, he submitted to allow the petition and to set aside the order only as it relates to conducting of subsequent investigation and filing of the additional/supplementary charge-sheet. In support of his contentions, the learned Senior Counsel relied upon the following decisions of the Hon'ble Apex Court:
1) Vinay Tyagi Vs. Irshad Ali Alias Deepak and Others reported in (2013)5 SCC 762.
2) State of Andhra Pradesh Vs. A.S. Peter reported in AIR 2008 SC 1052.
3) Criminal Appeal No.1171/2016 decided on 02.02.2017 (Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors.
4) State of Andhra Pradesh Vs. A.S. Peter reported in AIR 2008 SC 1052.
5. Per contra, the learned Special Public Prosecutor, during the course of her arguments made the submission that the order passed by the learned Special Judge comes under the scope of Section 173(8) 11 of Cr.P.C., that it is further investigation which is always permissible under law. It is also her submission that there is no fresh or reinvestigation in the matter. She made the submission that the acquisition of these properties in the names of his family members benami was not within the knowledge of the investigating agency when the investigation was conducted initially and charge-sheet was filed. She submitted that after coming to know that the petitioner/accused purchased the properties benami in the names of his family members when he was in service and after retirement he got the said properties under the guise that they were gifted to him by his family members, the investigating agency made an application for further investigation and hence, she made the submission that the order passed by the learned Special Judge is in accordance with law and hence, the petition filed is devoid of merits and same may be rejected. 12
6. I have perused the grounds urged in the petition, the documents produced by the petitioner along with the petition as per Annexures-A to G and also perused the decision relied upon by the learned Senior Counsel which is referred to above. So also, I have considered the oral submissions made by the learned Senior Counsel for the petitioner/accused and learned Special Public Prosecutor for respondent Lokayukta at the Bar.
7. In the case on hand, the allegation against the petitioner herein are that he possessed properties disproportionate to his known source of income and the check period is 01.08.1979 to 26.11.1998. The Investigation was completed and charge-sheet was filed in the case. After filing the charge-sheet, the accused filed an application seeking his discharge from the proceedings under Section 227 of Cr.P.C. The prosecution was given an opportunity to file an 13 objection statement to the said application and then, the application was heard and the learned Special Judge allowed the application filed under Section 227 read with Section 239 of Cr.P.C. and ordered that accused is discharged from the case. Then the prosecution challenged the said order by preferring Crl. R.P. No.100249/2014 before this Court and this Court, after hearing the said petition, allowed the same and set aside the order of discharge passed by the learned Special Judge. When the matter was posted for framing the charge as against the petitioner herein, on 12.07.2016, the Special Public Prosecutor filed an application of the Dy.S.P., Lokayukta, seeking permission for further investigation and also filed Investigating Officer's reports consisting of Part-I Vol. I and II, and on the said date, the Dy.S.P. of Lokayukta was also present before the Court. By the said requisition, the respondent-Lokayukta herein sought the permission of the learned Special Judge to conduct 14 further investigation of the matter in view of the subsequent facts which came to the knowledge of the respondent-Lokayukta that during the check period itself the petitioner/accused purchased the properties benami in the names of his mother and brothers and after his retirement he obtained the said properties to himself by way of gift deeds said to have been executed by his mother and brothers in his favour as well as in favour of his son. So, it is the contention of the prosecution that when the matter was investigated earlier, there were no documents to show that the said properties were purchased by the petitioner in the name of his mother and brothers and the same was mentioned in the charge-sheet filed before the Court. It is also the contention of the respondent-Lokayukta that after his retirement, the petitioner herein obtained the property in his favour by way of gift deeds executed in his favour from his brothers and mother and so also obtained the properties by way of gift in favour of his 15 son and as the respondent-Lokayukta were having information about the same they made such requisition before the learned Special Judge seeking permission for further investigation as per Section 173(8) of Cr.P.C. The learned Special Judge perusing the materials on record, passed the order dated 19.07.2016 and granted permission to Dy.S.P., Karnataka Lokayukta, Bagalkote to conduct further investigation in the matter. In this connection, it is useful to refer to the order of the learned Special Judge dated 19.07.2016 and the relevant paragraphs in the said order at para Nos.2, 3 and 4 which reads as under:
" 2. The charge-sheet has been laid against the accused before this court on 19-05-2012 alleging that during the check period from 01.8.1999 to 26.11.2008, the accused has amassed movable and immovable property in his name, in the name of his family members, his mother and brothers to the tune of Rs.2,80,55,675/- which is 126.03% disproportionate to his known sources of income. The accused had sought for his 16 discharge by filing an application and the same had been allowed and the accused had been discharged vide order dated 30.07.2014. Subsequently, in Crl.R.P. No.100249/2014, the Hon'ble High Court of Karnataka, Dharwad Bench, vide order dated 31.10.2015, set aside the order discharging the accused. Now, the case is posted for charge and charge is ready. At this stage, the Dy.S.P. Karnataka Lokayukta, Bagalkot has filed the instant requisition seeking permission for further investigation and filing of supplementary charge-sheet.
3. I have perused the final report of the Investigation Officer submitted along with the requisition. The I.O., who has conducted the investigation in his final report at Page No.81 to 100 has given a detailed account of the assets standing in the name of the mother of the accused and his brothers and the reason for not considering them as the assets of the accused.
4. The Hon'ble Apex Court in Sri. B.S.S.V.V.V. Maharaj Vs. State of U.P. (1999 Crl. LJ 3661 (SC)) has held that the power of police to conduct further investigation even after laying the final report is recognized U/Sec. 173(8) Cr.P.C. In the case on hand, the case is pending 17 before the court. Therefore, a formal permission from the court is being sought by the Dy.S.P, Karnataka Lokayukta, Bagalkot to make further investigation in view of credible information received. As, the Dy.S.P, Karnataka Lokayukta, Bagalkot is not precluded from making further investigation U/Sec. 173(8) of Cr.P.C, to unearth the facts in view of the information received by him, formal permission is hereby granted to the Dy.S.P, Karnataka Lokayukta, Bagalkot to conduct further investigation in the above case. Ordered accordingly."
8. The contention of the petitioner/accused before this Court, as argued by the learned Senior Counsel, is when the investigation was conducted earlier, the Investigating Officer had considered the said properties also, but as the I.O. was of the opinion that as there were no supporting documents available in respect of the benami transaction of the said properties, they were not considered as the properties of the petitioner/accused acquired during the check period and when that is so, now, by making fresh requisition, 18 the respondent-Lokayukta cannot contend that these properties are also the properties of the petitioner/accused held benami in the names of his brothers and mother and he got back said properties by way of gift deeds.
9. Learned Senior Counsel submitted that the order of learned Special Judge giving permission for conducting investigation in the matter in respect of those properties does not amount to further investigation as mentioned in Section 173(8) of Cr.P.C., but it amounts to reinvestigation, de novo investigation or fresh investigation which is not permissible in law. But, regarding, this contention of the learned Senior Counsel, it is no doubt true that the Special Judge cannot order for reinvestigation or de novo investigation and such powers are with the constitutional Courts i.e., the High Court or Hon'ble Supreme Court to pass such orders for de novo or fresh investigation of the matter. 19 In this connection, I am referring to the decision of Hon'ble Apex Court reported in (2016) 4 SCC 160, wherein the Hon'ble Apex Court held at para No.25 as under:
" 25. We may further elucidate. The power to order fresh, de-novo or reinvestigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means 20 absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the 'faith' in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "'id'ee fixe" but in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should 21 not harbor the feeling that he is an "orphan under law".
In the case of Vinay Tyagi supra, relied upon by the learned counsel for the petitioner, their Lordships of the Hon'ble Apex Court, at para No.22, have observed as under:
" 22. "Further investigation" is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of previous investigation and, therefore, is understood and described as 'further investigation'. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted 22 by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation."
Therefore, as per the dictum of the Hon'ble Apex Court, it is only the constitutional Courts which have the power to order for such fresh or de novo investigation. But, in the case on hand, the question is whether the order, impugned in this petition, passed by the learned Special Judge, Bagalkot, on the requisition made by the respondent-Lokayukta, amounts to de novo or fresh investigation, or it is only a further investigation under Section 173(8) of Cr.P.C.
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10. So far as the properties, which are said to have been obtained by the petitioner under the gift deeds from his brothers Tanaji and Dr.Ashok and so also from his mother Smt. Sonu bai, they are said to be the properties acquired by the petitioner herein benami in the names of his mother and brothers by his own money. However, when the investigation was conducted at the first instance and as mentioned by the Investigating Officer, there were no supporting materials and therefore, they were not considered to be the properties of the petitioner himself. But, it is the contention of the prosecution that immediately after his retirement, petitioner obtained the gift deeds dated 16.10.2014, 10.12.2014, 16.12.2014, 25.03.2015 and 31.09.2015. So, the prosecution contended that in view of these gift deeds obtained by the petitioner herein after submitting the first charge dated 30.01.2012, which was placed before the Court on 18.05.2012, these documents of gift deeds came into existence. Hence, the 24 prosecution has contended that in view of these subsequent events and the said material in the form of the documents, it is necessary to conduct further investigation in the matter and as the matter was pending before the Special Court, the prosecution moved the requisition before the concerned Special Judge at Bagalkot, which was considered, and after perusing the materials, by way of a detailed order, the relevant paras of which has been referred/extracted to above, the Special Judge allowed the requisition and permitted the prosecution to conduct the further investigation in the matter. Therefore, when the Investigating Officer obtained further information after submitting the final report, there was an occasion for the respondent-police to make such application before the Special Judge, and therefore, the contention of the learned Senior counsel for the petitioner/accused that only on the basis that while conducting the investigation, at the first instance, those properties were 25 also considered by the Investigating Officer and they were very much available and it is reported in the charge-sheet that there are no supporting material available to the Investigating Officer to show that those properties are the benami properties held by the petitioner himself in the names of his mother and brothers, it cannot be held that the permission granted by the learned Special Judge for conducting the further investigation in the matter amounts to de novo or fresh investigation. According to me, it is continuation of the earlier investigation and it comes within the scope of Section 173(8) as it is a further investigation to be conducted in the matter.
11. I have also perused the decision relied upon by the learned Senior Counsel appearing for the petitioner/accused which is referred to above. But looking to the facts and circumstances in the said reported decision and so also the facts and 26 circumstances in the case on hand, they are not exactly one and the same. Therefore, the said decision will not come to the aid and assistance of the petitioner's case.
12. Another contention of the learned Senior Counsel that before ordering for such investigation, no opportunity was given to the petitioner/accused by the Special Judge; had there been an opportunity given to the petitioner/accused, he would have been in a position to explain that they are the properties of his mother and brothers only and not the benami properties held by him in the names of his mother and brothers. I have perused the scope and ambit of Section 173 of Cr.P.C. and the clauses under the said provisions. It is not required for the Investigating Officer or the Court that the petitioner/accused is to be heard or consulted for such investigation. Therefore, the contention of the learned Senior Counsel in this regard cannot be accepted.
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13. The other contention of the learned Senior Counsel that looking to Section 13(1)(e) of the Act is concerned, the wordings are that the public servant during the tenure of his office when he possessed the properties which are disproportionate to his known source of income, only those things shall have to be taken into consideration and the learned Senior Counsel's submission is that the properties, which are obtained by way of gift deeds, are after his retirement from the post and hence, the said provision will not be attracted sofar as the properties obtained by way of gifts. Regarding this contention, I have perused the charge-sheet materials produced by the learned Senior Counsel himself along with the petition. But looking to the charge-sheet material even when the investigation was conducted at the first instance also, it is the contention of the prosecution that petitioner/accused held some of the properties benami in the names of his 28 mother and brothers when he was serving as a public servant. Therefore, when such contention was already there on the side of the prosecution, only on the ground that the gift deeds were executed after the retirement of the petitioner from the post, the provision of Section 13(1)(e) will not be attracted, it cannot be said that the provision of Section 13(1)(e) will not be attracted. Even if there is an investigation in respect of those properties and supplementary charge-sheet is filed, the same will be enquired into by the Court during the course of the trial and the petitioner/accused will not be prejudiced in any way. If really the properties are said to be held benami and the request made by the respondent-police itself is rejected only on the ground that it amounts to reinvestigation or de novo investigation, then it amounts to allowing a person to defeat the provisions of law by an indirect way. Apart from that the respondent-police have not suo motu proceeded to conduct such investigation. After submitting the charge-sheet, they 29 moved an application before the learned Special Judge seeking permission and the learned Special Judge considered the materials and so also the decision of the Hon'ble Apex Court in the case of Shri B.S.S.V.V. Maharaj Vs. State of Uttar Pradesh reported in 1999 Crl. L.J.3661 (SC), has passed the impugned order. Therefore, considering all these aspects of the matter, I am of the opinion that the order passed by the learned Special Judge is the order under Section 173(8) of Cr.P.C. permitting further investigation and it is not reinvestigation or de novo investigation. Hence, there is no merit in the petition. Accordingly, the petition is hereby rejected.
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