Karnataka High Court
Sri Shashikumar vs Assistant Director on 14 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 16851 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16851 OF 2022 (GM-RES)
BETWEEN:
1. SRI SHASHIKUMAR
S/O S K DEVEGOWDA
AGED ABOUT 59 YEARS
R/AT NO.106
5TH C MAIN ROAD
4TH CROSS, RPC LAYOUT
BANGALORE -560040
...PETITIONER
(BY SRI SWAROOP ANAND R, ADVOCATE)
AND:
1. ASSISTANT DIRECTOR
DIRECTORATE OF ENFORCEMENT
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
3RD FLOOR, B BLOCK, BMTC BUILDING
Digitally signed by SHANTHINAGAR, TTMC, K H ROAD
PADMAVATHI B K
Location: HIGH BANGALORE -560020
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI MADHUKAR DESHPANDE, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA R/W SECTION 482 CR.P.C.
PRAYING TO QUASH THE ORDER OF COGNIZANCE DATED
18.06.2020 IN PRIVATE COMPLAINT NUMBERED AS PCR
25/2020 AND REG-REGISTERED AS SPL CC 244/2020
-2-
WP No. 16851 of 2022
PRODUCED HEREIN AT ANNEXURE-H AS AGAINST THE
PETITIONER HEREIN PASSED BY PMLA SPECIAL COURT AND
XXXII ACC AND SJ AND SPL JUDGE, CBI, BANGALORE AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petition is filed calling in question the order taking cognizance dated 18.06.2020 and the order of framing charges on 01.08.2022.
2. Heard the learned counsel Sri.Swaroop Anand.R, appearing for the petitioner and the learned counsel Sri.Madhukar Deshpande representing the respondent.
3. Brief facts that leads the petitioner to this Court, to the subject petition, as borne out from the pleads, are as follows:
On 04.11.2011, the Bangalore Metropolitan Task Force registers a crime in Cr.No.4/2011 for offences punishable under Sections 420, 406, 409, 465, 468, 471, 477(a) r/w 120(B) of the IPC and Section 23 of the Karnataka Transparency in Public Procurement Act, 1999 alleging several illegalities in the -3- WP No. 16851 of 2022 contract awarded for civil works by the Bruhat Bengaluru Mahanagara Palike. The Crime Investigation Department (CID) was entrusted with the investigation and after conducting investigation, it transpires that a charge sheet was filed by the police, for offences punishable under the provisions of the Prevention of Corruption Act.
4. The issue in the case at hand does not concern the crime so registered or the charge sheet so filed by the police in C.C.Nos.107/2015 to 109/2015 for the offences therein. The subject petition concerns initiation of proceedings under Section 45 of the PMLA.
5. The learned counsel for the petitioner, inter alia, though raised several contentions on the merit of the matter and interpretation of Section 2 (y) of the PMLA with regard to the ceiling limit of the right of the Enforcement Directorate to draw proceedings against the accused, what merits consideration, at this juncture, is the order of the concerned Court, framing charges.
-4-WP No. 16851 of 2022
6. The complaint is filed by the Enforcement Directorate before the concerned Court upon which cognizance is taken and later, charges are framed. The order of framing charge dated 01.08.2022 reads as follows:
"C H A R G E I, Mohan.H.A., B.A.L., LL.B., XXXII Addl. City Civil & Sessions Judge and Spl. Judge for C.B.I. Cases, Bengaluru City, do hereby charge you Accused as follows:
1. That, it is alleged by the complainant/ED that during 2011 while executing the BBMP works in respect of Malleshwaram, Gandhi Nagar and Rajarajeshwari Nagar, you misappropriated public funds and acquired the respective properties mentioned in the schedule of the complaint out of proceeds of crime within the meaning of Section 3 of PML Act and punishable under Section 4 of the said Act And I hereby direct that you Accused be tried by this court for the offence as stated above."
7. A perusal at the order framing charges does not bear even a semblance of application of mind, as to the -5- WP No. 16851 of 2022 allegations, to be individually laid against all the accused. Framing of charge is what guides the trial subsequent to framing of charges, it is trite to observe that such orders should bear application of mind. The accused are nine in number and an omnibus charge (supra) is framed, on all the accused holding that they had misappropriated funds and acquired respective properties mentioned in the schedule of the complaint, out of the proceeds of crime within the meaning of Section 3 of the Act and there acts have become punishable under Section 4 of the Act. Except stating this against all the accused, what are the charges in the complaint that is laid by the Enforcement Directorate is not even mentioned. Therefore, the order which suffers for blatant non-application of mind is rendered unsustainable.
8. Reference being made to the judgment of the Apex Court in the case of V.C.SHUKLA VS. STATE THROUGH C.B.I1, the circumstances, becomes apposite. 1980 Supp Supreme Court Cases 921 -6- WP No. 16851 of 2022
9. The Apex Court with regard to the object behind framing of the charge has held as follows:
"109. What is the purpose or object in framing a charge?
110. When the accused is brought before a court, he is supplied with copies of documents referred to in Section. 207. Now, these documents may contain a number of matters and the accused may be at large as to what is the specific accusation, he is supposed to meet. Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. Section. 217 clearly prescribes what the charge should contain and a bare reading of it would show that the accused must be told in clear and unambiguous terms allegations of facts constituting the offence, the law which creates offence with a specific name, if given to it, and the section which is alleged to be violated with the name of the law in which it is contained. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. It is thus an intimation or notice to the accused of what precise offence or what allegations of facts he is called upon to meet. The object of a charge is to warn an accused person of the case he is to answer. It cannot be treated as if it was a part of a ceremonial. If this be the purpose of the charge, reference to the provisions contained in Chapter XVII as to the various forms and modes of framing a charge or joinder of charges and joinder of persons to be tried at one trial are beside the point. The importance of -7- WP No. 16851 of 2022 framing the charge need not be over-emphasised and that this should be shunned becomes apparent from the observations of Bose J. in William Elaney v. The State of Madhya Pradesh which reads as under:-
"We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials. We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent."
10. The Apex Court holds that the framing of charge is an intimation of notice of what offence he is precisely called to meet. If the charge framed is shrouded with such ambiguity, the accused gets seriously prejudiced and such a trial would run counter to a fair trial being conducted which is the soul of criminal justice system.
11. Therefore, keeping open all the contentions that the petitioner has urged or would seek to be urge in the appropriate proceedings, I deem it appropriate to obliterate the order dated 01.08.2022 by which the charge is framed and remit the matter back to the hands of the concerned Court to -8- WP No. 16851 of 2022 frame charges appropriately indicating offence against each of the accused, which they are required to meet.
12. The writ petition is disposed of. The observation that it would guide the trial does not mean that the contentions of the petitioner have been negatived.
13. All the contentions of the petitioner shall remain open.
Ordered accordingly.
Sd/-
JUDGE VM List No.: 1 Sl No.: 69