Karnataka High Court
Siddarud S/O. Bhimappa Banasodi vs Karnataka Lokayukta on 18 December, 2015
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.11486/2013
BETWEEN
1. SIDDARUD S/O. BHIMAPPA BANASODI
AGE: 40 YEARS,
OCC: EXCISE GUARD
R/O. DEVI DEVASTHAN ROAD,
YALLAPUR
2. MOHAMMED ALTAF
S/O. HASANSAB ANAVATTI
AGE: MAJOR,
OCC: EXCISE GUARD
R/O. HUBLI ROAD, TQ: SIRSI
... PETITIONERS
(BY SRI V M SHEELVANT, ADVOCATE)
AND
KARNATAKA LOKAYUKTA
REPRESENTED BY
THE INVESTIGATING OFFICER
LOKAYUKTA POLICE STATION,
KARWAR
... RESPONDENT
(BY SRI MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C SEEKING TO ALLOW THE PETITION AND QUASH
THE FIR AND INVESTIGATION IN CRIME NO.4/2012
REGISTERED IN KARNATAKA LOKAYUKTA POLICE
STATION, KARWAR, INSOFAR AS PETITIONERS ARE
CONCERNED.
THIS PETITION HAVING HEARD AND RESERVED
FOR ORDERS ON 19.11.2015, COMING ON FOR
PROUNCEMENT OF ORDER THIS DAY, THE COURT, MADE
THE FOLLOWING:
ORDER
This is the petition filed by petitioners-Accused Nos.1 and 3 under Section 482 of Cr.P.C. requesting the Court to quash the FIR and investigation in Crime No.4/2012, registered in respondent-Karnataka Lokayukta Police Station, Karwar as the proceedings relate to the above named petitioners.
2. Brief facts of the case of the prosecution are that, as per the complaint, on 12.07.2012 the Lokayukta :3: Sleuths raided the premises of Anmod check-post, on receiving credible information that accused/petitioners are checking the vehicles coming from Goa and collecting bribe. The complainant conducted the raid at the said check-post at 5.05 p.m. and found that the petitioners were in uniform and on duty. It is further alleged that the raiding party along with two Panchas went to the spot at 4.45 p.m. and watched the activities at the check post and raided the check post and found the petitioners asking bribe from the lorry drivers and also found Rs.6,800/- in the table drawers and also found 14 bottles of liquor in the check post and there was no explanation for possessing the said amount and thus raiding party seized the same. Seizure Panchanama was drawn at the check post.
3. The petitioners herein and another had filed a Criminal Petition No.11570/2012 seeking to quash the FIR and investigation in the above said crime number. :4: The petitioners withdrew the petition reserving liberty to them to file a fresh petition after charge sheet is filed. As the investigating agency has not completed the investigation and not filed charge sheet till date, the petitioners filed this petition.
4. Heard the arguments of the Learned Counsel appearing for petitioners/accused and also the learned Standing Counsel for the respondent-Lokayukta.
5. Learned counsel for the petitioners submitted that no material has been placed by the prosecution to support the contention that the present petitioners were asking bribe from the drivers of the vehicles passing through the said check post. He also made the submission that the Panchanama in the said case was drawn even earlier to the registration of the FIR, which is patently illegal. Learned counsel for the petitioners also submitted that there is no complaint from anybody :5: alleging that the above petitioners were demanding bribe amount from the drivers of the vehicles passing there. Hence, the learned counsel submitted that the very registration of the FIR itself is baseless and no prima facie case has been made out by the prosecution. Learned counsel also made the submission that the prosecution relied upon the statement of two witnesses who are said to be the drivers. But whose statements have been recorded after the lapse of more than two months. Hence, the same cannot be relied upon. Hence, the learned counsel submitted that even reading of the entire complaint, as well as the seizure Panchanama will not make out a case to attract the alleged offences punishable under Sections 7 and 13 of the Prevention of Corruption Act. Hence, the learned counsel submitted that the registration of FIR in this case is nothing but abuse of the process of law. Hence, submitted to allow the petition and to quash the proceedings. In support of his contention the learned :6: counsel for the petitioners has relied upon the following decisions filed along with memo dated 19.11.2015 with citations:
1) SCC 2014(d) Page 1 2) Crl.Pno.11477/2011
6. Per contra, learned Standing Counsel representing the respondent/Lokayukta during the course of his arguments made the submission that the Lokayukta Authorities received a information that the present petitioners in the said check post are collecting bribe amount from the drivers of the vehicles passing through the said check post. Because of the said information the Authority along with the Panchas went to the spot and at certain distance when they were watching the activities of the petitioners with other accused persons, they noticed the petitioners collecting bribe amount from the drivers of the vehicles passing through the said :7: check post. Learned Standing Counsel also made the submission that when the raid was conducted the petitioners with another accused found in possession of Rs.6,800/- and also liquor bottles for which they have not accounted nor given any proper explanation as to from where they got the amount of Rs.6,800/- and the bottles. Learned Standing Counsel further made the submission that even on earlier occasions also the petitioners approached this Court, but subsequently they withdrawn the said petition and the Court observed while permitting the withdrawal of the earlier petition liberty was reserved to them to approach the Court after filing the charge sheet. Learned Standing Counsel submitted that still the matter is under investigation and it is not yet completed and before that again the petitioners have approached this Court, which is against the order of this Court passed in the earlier petition. Learned Standing Counsel further made the submission that so far as the contention of the learned :8: counsel for the other side that there is no demand of bribe amount by the petitioners, he submitted that so far as the alleged offence under Section 13 of the Prevention of Corruption Act, it requires demand. But so far as Section 7 is concerned, there is no such requirement that there must be demand of the bribe amount. Hence, the learned counsel submitted that the prosecution will be able to explain about all these things when investigation is completed and charge sheet is filed. Hence, he submitted that there is no merit in the petition and hence, the same may be dismissed. In support of his contention, learned counsel for the respondent/Lokayukta relied upon the following decisions filed along with memo dated 19.11.2015:
1) The State Vs. Parthiban reported in (2006) 11 SCC 473 (para 7) Every acceptance of illegal gratification whether preceded by demand or not would be covered under Section 7 of the Act :9:
2) Lalita Kumari Vs. Government of Uttar Pradesh (2014) 2 SCC 1 (para 120.6) Preliminary enquiry in corruptions cases is permissible
3) Ranganath Vs. The State of Karnataka Criminal Petition No.200071/2014 (para 24) Once charge sheet is filed and matter reached the stage of framing charges proceedings cannot be quashed.
7. I have perused the grounds urged in the petition, also the Complaint, FIR and the Panchanama dated 12.07.2012 for the seizure of the amount and liquor bottles and the decision relied upon by the learned counsel for both the sides, which are referred above.
8. The first and foremost contention of the petitioners herein is that the FIR was not registered and even earlier to registration of the FIR the Lokayukta : 10 : Police visited the spot and conducted the Mahazar which procedure is illegal and it is not maintainable in law. It is also the contention of the petitioners herein that there was no complaint from anybody making the allegations that the petitioners were demanding the bribe amount. So also it is his contention that, even if the materials collected were taken into consideration there is no prima facie case made out in the FIR and hence the matter requires to be quashed by invoking Section 482 of the Cr.P.C. In this regard, I have referred to the decisions relied upon by both the sides. The learned counsels on both the sides have relied upon the decision reported in (2014) 2 SCC Page-1.
9. Perusing this decision in respect of certain of the offences there are exceptions wherein even without registering the FIR for the purpose of collecting the details of the said offence preliminary inquiry may be required owing to the change in genesis and novelty of : 11 : crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. In the context of offences relating to corruption, the Supreme Court has also expressed the need for a preliminary inquiry before proceeding against public servants.
10. Looking to the principle in the said decision, now it cannot be said that simply because the Lokayukta Police on the information received, immediately proceeded to the spot along with the Panchas and conducted the Panchanama and this is without registration of the FIR and hence, the entire proceedings are illegal.
: 12 :
11. Therefore, the contention of the petitioners herein that the procedures are illegal and the same are to be quashed cannot be accepted.
12. With regard to the contention of the petitioners that there was no complaint from anybody making the allegations that the petitioners were demanding the bribe amount from them, I have perused the decision of the Hon'ble Supreme Court of India, relied upon by the learned counsel for the respondent/Lokayukta, rendered in Criminal Appeal No.842/2003 decided on 09.10.2006 and in Para No.7 of the said decision it is observed as under:
"Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of : 13 : the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different Sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and : 14 : 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year."
13. I have also perused the another decision of this Court dated 25.02.2015 rendered in Criminal Revision Petition No.200071/2014 perusing the principles enunciated in the said decision, I am of the opinion that only on the ground that there was no complaint made by anybody making the specific allegation of demand for bribe amount by the petitioners, the entire case of the prosecution cannot be bressed aside.
14. The petitioners approached this Court even on earlier occasion also, by filing a petition seeking to quash the proceedings by invoking Section 482 of the Cr.P.C. This Court in Crl.P.No.11570/2012 06.02.2013 passed the order to the following effect. : 15 :
"The learned counsel for the petitioners submits that the petition may be dismissed, as withdrawn, with liberty to file fresh petition after the charge sheet is filed.
2. Accordingly this petition is dismissed, as withdrawn, with liberty to file fresh petition after the charge sheet is filed."
15. So, the order passed in the above referred criminal petition itself goes to show that the petitioners themselves have withdrawn the earlier petition submitting that they will file a fresh petition after filing of the charge sheet. As submitted by the learned counsel appearing for the respondent/Lokayukta, the investigation is still going on and the final report were to be filed in the case. Therefore, filing of this petition is pre-mature and it is against their own undertaking to the Court while withdrawing the earlier petition. : 16 :
16. Looking to these materials placed on record, so also the legal position, I am of the opinion that the petitioners have not made out a case at this stage to consider that the registration of the FIR will not make out a prima facie case against the petitioners and it is the abuse of the process of the Court.
17. Hence, there is no merit in the petition. Accordingly, the same is hereby rejected.
Sd/-
JUDGE Sbs*