Karnataka High Court
K.S. Eshwarappa vs State Of Karnataka on 1 August, 2016
Equivalent citations: 2016 (4) AKR 563
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01st DAY OF AUGUST, 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.3618 OF 2016
Between:
1. K.S. Eshwarappa,
S/o late Sharanappa,
Aged 64 years,
Presently residing at
Jayalaxmi Nilaya,
1st Main Road,
Gundappa Shed,
Malleshwara Layout,
Shivamogga - 577 201.
2. Sri. K.E. Kanthesh,
S/o K.S. Eshwarappa,
Aged 33 years,
Residing at
Jayalaxmi Nilaya,
1st Main Road,
Gundappa Shed,
Malleshwara Layout,
Shivamogga - 577 201.
3. Smt. Shalini,
W/o K.E. Kanthesh,
Aged 28 years,
Jayalaxmi Nilaya,
2
1st Main Road,
Gundappa Shed,
Malleshwara Layout,
Shivamogga - 577 201. ...Petitioners
(By Shri. Ravi B. Naik., Sr. Counsel for
Shri. Vinod Kumar M, Advocate)
And:
1. State of Karnataka,
By Lokayukta Police Shivamogga,
Represented by
State Public Prosecutor,
High Court Building,
Bangalore - 577 201.
2. Sri. Vinod. B,
S/o Late Oman Baby,
Aged 48 years,
Advocate,
Resident of Beena Villa,
Kuvempu Road,
Shivamogga - 577 201. ...Respondents
(By Shri. Venkatesh P Dalwai, Adv. for R1;
Shri. M.S. Shyam Sundar, Adv. for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings in PCR
No.4/2012 pending on the file of the Prl. S.J. and Spl.
Court for Lokayukta offences at Shivamogga (Annexure - A)
for the offences P/U/S 13(i)(d) and (e) r/w Section 13(2) of
P.C. Act and Section 420 and 120(b) of IPC.
3
This Petition coming on for admission this day, the
Court made the following:-
ORDER
Heard the learned Senior Advocate Shri Ravi B Naik appearing for the petitioners and the learned counsel for the complainant - respondent No.2 as well as the Standing counsel for the Lokayuktha. The present petition is filed in the following background.
2. Respondent No.2 is said to have initially filed a complaint before the trial court in the year 2012 to the effect that he is an anti-corruption activist and an advocate and that petitioner No.1 herein was the Deputy Chief Minister of the State of Karnataka and he was a cabinet minister of the State and now he is holding the office of President of Bharatiya Janata Party. It was alleged that abusing his official position he has indulged in nepotism and amassed wealth disproportionate to his known sources of income and the petitioner No.2 being the son of 4 petitioner No.1 along with other family members run various educational institutions apart from operating several industrial units and other commercial establishments and that the petitioner No.1 had amassed wealth in the name of petitioner Nos.2 and 3. Petitioner No.3 being the daughter-in-law of petitioner No.1 and that they have accumulated wealth valued at several thousand crores, especially during the period when he was the cabinet minister since the year 2006. It is apart from other allegations of having acquired movable and immovable properties within the country and elsewhere. It is in this background that the court below namely the Special Judge under the Prevention of Corruption Act, 1988 had registered a case in Crime No.10/2012 alleging offences punishable under Section 13(i)(d) and (e) read with Section 13(2) of the Prevention of Corruption Act 1988, (hereinafter referred to as the 'P.C. Act', for brevity) and Section 420 5 and 120(b) of Indian Penal Code, 1860 (hereinafter referred to as IPC, for brevity).
3. The petitioners had initially filed a petition under Section 482 before this Court seeking quashing of those proceedings. It was found on the face of it, that since the petitioner No.1 was a public servant and as there was no prior sanction obtained to initiate the proceedings and on that count alone the petition was allowed and the proceedings were quashed. Thereafter a fresh complaint was filed by the second respondent in the year 2014. Again the same was dismissed on the ground that there was no prior sanction and it was further held that unless the proceedings could be taken against petitioner No.1 the proceedings against the other petitioners could not be initiated. That was challenged in a revision petition before this court in Crl.R.P. No.224/2014. That was allowed by this Court by an order dated 21.10.2014 holding that petitioner No.1 no longer continued as a Minister or the 6 Deputy Chief Minister of the State and therefore the question of obtaining sanction was unnecessary. The learned Sessions Judge thereafter having proceeded to take cognizance without the complainant being examined and without recording the statement of the complainant and his witnesses for the offence punishable under Section 13(i)(d) and (e) read with Section 13(2) of the Prevention of Corruption Act and the provisions of the IPC, the petitioner is before this Court.
4. The learned Senior Advocate Shri Naik would point out that in particular Section 13 (i)(e) would require that there be material before the Court where the public servant cannot satisfactorily account for the pecuniary sources, from his known source of income and therefore without any investigation being conducted or a report being placed before the court below the court having proceeded on the complaint, without even the complainant being examined would amount to an illegal procedure and 7 thereby causes serious prejudice to the petitioner and his family members. It is this primary contention on which the learned Senior Advocate would lay emphasis and would point out that the court below has proceeded on the material that had been gathered in previous proceedings and it has been acted upon without following the procedure in law and therefore seeks quashing of the proceedings.
5. The learned counsel for respondent No.2 however would point out that though the earlier proceedings were quashed and set at naught there was substantial material gathered at an investigation and there was prima facie material to indicate that petitioner and his family had acquired properties both movable and immovable not only in the country but outside the country as well, and that such material being readily available the complainant had made a request to the court earlier that such material which had been gathered with much difficulty should be made available to the court at a later 8 point of time when the complainant would renew his complaint in accordance with law and that request having been accepted it is that material which has been relied upon in the court proceedings in the manner that it has.
6. In the above background it is seen that Section 460 of the Code of Criminal Procedure, 1973, would indicate that an irregularity in having taken cognizance of the court would not vitiate the proceedings, as in the present case on hand. Even if the contention of the learned Senior Advocate is to be accepted that cognizance could not have been taken without examining the complainant and his witnesses on prima facie material being made available to the court. There is no impediment for this Court to direct that the trial court on the basis of the complaint lodged, proceed in accordance with law. The trial court has the opinion of obtaining an investigation report and on the basis of any report the court below could proceed. 9 Thereafter further proceedings could be taken. The alleged irregularity does not efface the proceedings.
7. The learned Senior Advocate would not dispute the position of law that such irregular action on the part of the court below in having taken cognizance in a slip shod manner does not vitiate the proceedings and he would be satisfied if the procedure in accordance with law is followed by the court below. Accordingly, the proceedings before the court below shall be deemed to be at a stage where the complaint is lodged before the court below, for the court to pass appropriate orders in accordance with law the earlier order whereby the court has taken cognizance is however set aside and quashed. With that observation the petition stands disposed of.
Before parting with this case it is noticed that the proceedings have been hanging fire, for one reason or the other over the years and it may be necessary to expedite 10 the proceedings to ensure that it reaches a logical conclusion, one way or the other, at the earliest.
Sd/-
JUDGE ykl