Karnataka High Court
Tabbussum Zahera vs State Of Karnataka on 28 July, 2021
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.650 OF 2021
BETWEEN
TABBUSSUM ZAHERA
W/O. MEER ABRAR HUSSAIN,
AGED ABOUT 45 YEARS,
OCC: SPECIAL LAND, ACQUISITION OFFICER
OFFICE OF THE SLAO, KIADB MARUTHI TOWERS,
1ST FLOOR, NEAR SIT MAIN ROAD,
TUMAKURU.
... PETITIONER
(BY SRI RAVI B NAIK, SENIOR COUNSEL
FOR SMT. VIJETHA R. NAIK, ADVOCATE)
AND
STATE OF KARNATAKA
BY THE ACB POLICE, TUMAKURU,
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI MANMOHAN P.N., SPL.P.P)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CODE OF
CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER
DATED 30.03.2021 PASSED BY THE VII ADDITIONAL SESSIONS
AND SPECIAL JUDGE, TUMAKURU IN SPL. CASE NO.330 OF
2019.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 30.06.2021 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
This revision petition is filed by the petitioner- accused under Section 397 of Cr.P.C., for setting aside the order of the VII Additional Sessions and Special Judge, Tumakuru in Special Case No.330/2019 dated 30.03.2021 for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and have summoned the petitioner as additional accused and directing the Police to obtain sanction from the Government to proceed against the petitioner for trial on the application filed under Section 319 of Cr.P.C.
2. Heard the arguments of Sri Ravi B. Naik, learned senior counsel for the petitioner and Sri Manmohan P.N., learned counsel for the respondent-ACB.
3. The case of the prosecution in brief is that the complainant-PW.1 filed a complaint/first information to the ACB Police on 23.05.2017 alleging that he has approached the Tahsildar office to enquire about the change of Khata in his name from his father's name in respect of the 3 property survey No.45/2 measuring 1 acre 7 guntas situated at Siddapura Village, Yediyur Hobli, Kunigal Taluk, Tumakuru District. On verification, it was found in the RTC showing to the extent of 1 acre 34 guntas instead of 1 acre 7 guntas and the names of Chandrashekar and his brothers were mentioned as purchaser from one Jyothi Prakash. Hence, he has approached the Assistant Commissioner by filing a case which is numbered as 35/2013-14 to quash the khata which stands in the name of Chandrashekar to change his name on the basis of inheritance. He further alleged that he has approached the Assistant Commissioner, the present petitioner herein (who was named as accused No.1 in the FIR) and he met personally with the Personal Assistant-accused No.2 on the same day. In February 2017, accused No.2 met him and told him to spend some money to get khata work done and accused No.2 demanded an amount of Rs.15,000/- for himself and received Rs.20,000/- in an envelope to be given to the present petitioner as bribe. Accordingly, Rs.15,000/- was given to accused No.2 and Rs.20,000/- 4 was given to the present petitioner in envelope and accused No.2 informed that accused No.1 will pass an order in few days. But in spite of lapse of one month, accused No.2 postponed the matter on one or the other ground. Ultimately on 19.05.2017, the complainant met the present petitioner-Assistant Commissioner at 1.30 p.m., but she has stated that nothing can be done and she has spoken with accused No.2 and asked the complainant to wait outside. At that time, accused No.2 was not in the seat, therefore, he telephoned accused No.2 and in the said conversation, he has spoken about the bribe of Rs.35,000/-. Later, accused No.2 met the complainant and informed that the Assistant Commissioner is not agreeing to do the work and accused No.2 has told the complainant to give an additional amount of Rs.25,000/- to the Assistant Commissioner. The complainant-informant was not interested and not willing to pay the additional amount. Hence, he lodged a complaint to the ACB Police. He has also produced the telephonic conversation held between the informant and accused No.2. After registering 5 a case in Crime No.7/2017 by showing this petitioner as accused no.1 on 23.05.2017, the ACB police set out to trap the accused, but it was a failure. The complainant met the Assistant Commissioner at 5.50 p.m., in her chamber and offered the tainted amount, but she refused to accept the same saying that she will go through his file again and see whether his work can be done and also said that he can come and meet her later. Thereafter, the Investigating Officer decided to trap the accused. The voice identification was done on 8.11.2017. The Additional Deputy Commissioner has identified the voice of accused No.1-the present petitioner and recorded the conversation in the video recording and the Tahsildar, Tumakuru identified the voice of accused No.2 in three audio recordings. The voice recording was sent for FSL analysis. Subsequently, the Investigating Officer has completed the investigation and filed the charge-sheet only against accused No.2 by dropping the name of accused No.1 in the charge-sheet. While recording further statement of the informant, he has stated that the present petitioner has not demanded any 6 bribe from him. Subsequently, accused No.2 faced trial and charges were framed against him. The prosecution has examined four witnesses and during the pendency of the trial, the Special Public Prosecutor has filed an application under Section 319 of Cr.P.C., for summoning the petitioner as additional accused. The notice has been issued to the petitioner and after filing of the objection by this petitioner and hearing the arguments, the impugned order was passed on 30.03.2021 by allowing the application under Section 319 of Cr.P.C. and held that there is sufficient material to summon the petitioner as additional accused and in view of the Judgment of the Hon'ble Supreme Court in the case of Dilawar Singh vs. Parvinder Singh reported in (2005) 12 SCC 709 without obtaining sanction, the accused shall not be summoned, therefore, directed the Police to obtain the sanction from the Competent Authority to proceed against the petitioner. Being aggrieved with the order, the petitioner-additional accused approached this Court by filing revision petition. 7
4. Learned senior counsel for the petitioner has contended that absolutely there is no evidence against the petitioner in the charge-sheet material. Therefore, the Investigating Officer has rightly deleted the name of the petitioner from the charge-sheet as accused and proceeded only against accused No.2. Even on perusal of the evidence of the prosecution witnesses which is not sufficient to show that there is any evidence available against this petitioner for summoning as additional accused and further contended that the audio recording is also not clear and there is no allegation that she has received any bribe amount from the informant. The voice recording report is pending which is not a ground for summoning the petitioner. Merely identifying the voice of this petitioner by one Anitha is not sufficient to summon this petitioner. The voice is not able to identify by the witnesses. There is no demand made by the petitioner for bribe which is under dispute. The Civil suit is pending and merely, the work is pending with this petitioner that itself is not a ground to say that she has demanded any bribe. 8 The evidence of the prosecution witnesses cannot be relied upon the allegation of demand. The evidence gave by PW.2-FSL Officer is not sufficient for summoning the accused. Hence, prayed for allowing the petition and to set aside the order passed by the trial Court.
5. Learned counsel for the petitioner has further contended that though the informant has stated in the complaint that he has paid money directly to the petitioner and she has accepted the envelope cover, but in the further statement, he has stated that she has not demanded the bribe from him. There is no evidence forthcoming to show that there was any demand made by the petitioner from the complainant in the video recording produced by the complainant. These crucial aspects have not been looked into by the trial Court while passing the impugned order. The offences under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 will not attract against the petitioner. Hence, prayed for setting aside the impugned order.
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6. Per contra, Sri Manmohan P.N., learned counsel for the respondent-ACB objected the petition and justified the order passed by the trial Court in summoning the petitioner as additional accused. The memory card and video clippings in respect of conversation between the accused and the complainant clearly reveals that the amount is paid by the complainant to the petitioner and also accused No.2. Therefore, the same is reflected under the evidence of PW.1 and voice expert-PW.2. Therefore, he has contended that the trial Court has rightly allowed the application and summoned the petitioner as additional accused, hence, prayed for dismissing the revision petition.
7. Upon hearing the arguments and perusal of the records, before going to the case of the petitioner, it is worth to mention the principles laid down by the Hon'ble Supreme Court in respect of summoning the additional accused under Section 319 of Cr.P.C., in the case of Hardeep Singh vs. State of Punjab and others dated 10.01.2014, whereas, the Constitutional Bench of the 10 Hon'ble Supreme Court in Crl.A.No.1750/2008 a/w Crl.A.No.1751/2008 and connected matters at paragragh 100 while answering question No.(v) i.e., In what situations can the power under this section be exercised:
Not named in FIR; Named in the FIR but not charge-
sheeted or has been discharged? in respect of exercising power under Section 319 of Cr.P.C.,
8. The Hon'ble Supreme Court at paragraph Nos.99, 100, 102, 103, 110 has held as under:
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In 11 Section 319 Cr.P.C., the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not charge-sheeted or has been discharged?
100. In Joginder Singh & Anr. v. State of Punjab & Anr., AIR 1979 SC 339, a three-
Judge Bench of this Court held that as regards the contention that the phrase "any person not being the accused" occurring in Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. and has been shown in Column 2 of the charge-sheet, the contention has merely to be rejected. The said expression clearly covers any person who is not being 12 tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) Cr.P.C. clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression.
102. In Suman v. State of Rajasthan & Anr., AIR 2010 SC 518, a two-Judge Bench of this Court observed that there is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint, but against whom charge- sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence, the court finds that such person has committed an offence for which he could be tried together with the other accused. In Lal Suraj (supra), a two-Judge Bench held that there is no dispute with the legal proposition that even if a person had not been charge-sheeted, he may come within the purview of the description of such a person as contained in Section 319 Cr.P.C. A similar view had been taken in Lok Ram 13 (Supra), wherein it was held that a person, though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial.
103. Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Cr.P.C. can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled.
110. We accordingly sum up our conclusions as follows:
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Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be 15 understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C.
Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. II - Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is 16 disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No.IV - What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have 17 already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial -
therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No.V - Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
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9. In view of the principle laid down by the Hon'ble Supreme Court in the above said case and on perusal of records, the Police registered the case initially against this petitioner showing as accused No.1 and one Shabbir Ahamed as accused No.2. M.O.1-Memory Card placed by the complainant-informant before the Police. The conversation confirms the demand of bribe from the informant by accused Nos.1 and 2. Thereafter, the trap was arranged, but it was unsuccessful. Though on the date of arranging trap, the present petitioner refused to receive the money. The petitioner has stated that it is not possible to pass any favorable order in respect of the case filed by the informant for change of khata. Therefore, the Police later arrested accused No.2 and thereafter, it is alleged that the further statement of the complainant/informant has been recorded where he has stated that there is no demand or payment to the petitioner, therefore, the Investigating Officer dropped the name of this petitioner from the charge-sheet and filed the charge-sheet only against accused No.2-Shabbir Ahamed. But the informant 19 while examining as PW.1, has categorically stated that he has not given any such further statement but he has given the money to accused No.1 as well as accused No.2. He has stated that he kept Rs.15,000/- in an envelop to accused No.2 and Rs.20,000/- to the petitioner. He went to the chambers of the petitioner and handed over the same to her and thereafter, the case was trapped and no favorable order has been passed by the petitioner in favour of the informant. Based upon the conversation, the complaint came to be registered and later, the name of the petitioner was dropped by the Police in the charge-sheet. The case clearly falls on the question raised by the Hon'ble Supreme Court and answered that the person whose name was found in the FIR and later not charge-sheeted got summoned under Section 319 of Cr.P.C., and to be tried along with accused No.2 who is already facing trial. On perusal of the telephonic conversation held between accused No.2 and the complainant and complainant with this petitioner reveals that the complainant has paid money to this petitioner and also to accused No.1. The 20 work was also pending with this petitioner and the evidence of PWs.1 and 2 clearly goes to show the involvement of this petitioner in the offence. Therefore, the trial court has rightly passed the impugned order for summoning this petitioner as additional accused. The trial Court also passed the impugned order by relying upon the judgment of the Hon'ble Supreme Court in the case of Hardeep Singh stated supra and the fact of this case and evidence adduced before the trial Court, trial Court has rightly passed the order by allowing the application under Section 319 of Cr.P.C. In view of the judgments of the Hon'ble Supreme Court in the cases of Dilawar Singh vs. Parvinder Singh reported in (2005) 12 SCC 709 and Zahira Habibulla H. Sheikh vs. State of Gujarat reported in (2004) 4 SCC 158, it is directed the Investigating Agency to seek permission to prosecute the petitioner who is a public servant as required under Section 19 of the P.C. Act. Therefore, I do not find any error or illegality committed by the trial Court while allowing the application filed by the prosecution under 21 Section 319 of Cr.P.C. The petition is devoid of merits and liable to be rejected. Accordingly, criminal revision petition is dismissed.
The interim order granted is hereby vacated. The Investigating Agency shall follow the order of the trial Court.
Sd/-
JUDGE GBB