Karnataka High Court
Jagadish Veerabasappa Byaliyavar vs The State By Police Inspector on 7 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 7TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.2173 OF 2012
BETWEEN:
Jagadish Veerabasappa Byaliyavar,
Aged 57 years,
Deputy Tahasildar of Haveri. ... PETITIONER.
(By Shri Aravind D. Kulkarni, Advocate)
AND:
The State by Police Inspector,
Karnataka Lokayuktha Police Wing,
Haveri, Represented by Addl. State Public Prosecutor,
High Court Circuit Bench,
Dharwad. ... RESPONDENT.
(Shri. M.B. Gundawade, Advocate)
This Criminal Revision petition is filed under Section
397 read with 401 of the Cr.P.C seeking to set-aside the
order dated 25.06.2012 passed by the Special Judge, Haveri,
in Spl.(Lok) C.C.No.03/2009 thereby dismissing the
application filed under Section 239 of the Cr.P.C. by the
petitioner, consequently allow the said application and
discharge the petitioner from the offences punishable under
Sections 7, 13(1)(D) read with Section 13(2) of the Prevention
of Corruption Act.
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This Petition coming on for admission, this day, the
court made the following:
ORDER
Heard the learned counsel for the petitioner.
2. The petitioner is accused of offences punishable under the provisions of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act' for brevity). It is alleged that the petitioner was employed as a Deputy Tahsildar, Haveri and it was alleged by the complainant that the petitioner had demanded and received illegal gratification, to extend an official favour. It is in this backdrop that a trap was successfully laid against the petitioner and he was charge-sheeted on the above allegations. The petitioner had approached the court below under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity), seeking discharge on various grounds. Firstly, that the petitioner was never on duty on the relevant date and that he was on tour, as reflected in the Attendance Register. Secondly, that the petitioner had not demanded 3 or received any bribe. There is no material evidence to disclose that the petitioner had in fact demanded and accepted the bribe. The shadow witness has not made any categorical statement in this regard. Further, though there was hand wash of the petitioner to discover whether he had handled the money which was treated with phenolphthalein powder, the result was negative. The court below, while addressing the contentions raised, seeking discharge, has however inexplicably held that the contention of the petitioner was incorrect, as the report did indicate that his hand when washed with Sodium Carbonate solution, had turned pink. This according to the learned counsel, is an incorrect finding and since the entire order dismissing the application for discharge is based on this incorrect finding, the petitioner would submit that there is a need for re-examination by this Court as to whether the court was justified in rejecting the application for discharge in the face of a glaring circumstance that there was no evidence whatsoever 4 against the petitioner of having demanded and received the illegal gratification.
3. Shri M.B. Gundawade who has been directed to take notice for the respondent, would by way of reply contend that each and every contention raised in the present petition is in the nature of defence that could be set up by the accused at the trial and there is no ground made out for discharge. Since the degree of scrutiny by the court below at the stage of framing of charges is limited and to address the merits of the case and proceed as if there are findings of fact and to claim that the petitioner ought to be discharged, is not contemplated in law. The court below having prima facie opined that there is a case made out for framing of charges, does not render a judgment of conviction or acquittal. Hence, the proceedings will have to run their course. The incidental contention that the report placed on record would indicate that the phenolphthalein test had proved to be negative, while the court below has expressed an opinion that it had 5 proved positive, is a discrepancy which could certainly be brought to the notice of the court at the stage of trial. The petitioner is not precluded from doing so. But, for this Court to form a different opinion and to discharge the accused merely on that ground would result in a miscarriage of justice as then, the petitioner would have never stood trial and the findings would have been arrived at by this Court without trial, which is impermissible and therefore, the learned counsel would submit that the petition be dismissed.
4. By way of reply, the learned counsel for the petitioner would submit that there is a decided case of this Court in the case of Sri Ramesh Desai and Another vs. The State of Karnataka by Raichur Lokayukta P.S. (2012 (3) KCCR 1738), wherein it has been held that a biased investigation would be a ground for discharge and for quashing of the proceedings.
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In the instant case, the learned counsel would point out that there is an added circumstance of the Investigation Officer having sent a Tape-recorder along with the complaint, which is impermissible in law, as held by this Court in the above decision and therefore, is an added ground for quashing the proceedings.
5. While it may be that this Court has taken a view in the above decided case that the circumstance pointed out therein was a ground for quashing the proceedings, it cannot be treated as a precedent laying down the law to be applied in every given case where there may be a variance in the facts. It would be a dangerous precedent to be followed and therefore, since the trial is yet to commence in these proceedings, it is appropriate that the petitioner should contest the matter and test the evidence of the prosecution at the trial, including the discrepancy insofar as the phenolphthalein test is concerned. Accordingly, the petition is rejected.
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The office to show the name of Shri M.B. Gundawade as appearing for the respondent, in the causetitle.
Sd/-
JUDGE KS