Karnataka High Court
R. Ramanath S/O R. Anjini Rao vs State Of Karnataka on 17 December, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH CO URT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH Y ER UR
CRIMINAL REVISION PETIT ION N O.100313/ 2019
BETWEEN:
R.RAMANAT H S/O.R.ANJINI RA O
AGE: 43 YEARS , OCC: COMPUTER
OPERAT OR IN KUD LIGI TALUK PANCHAYAT,
R/O. MARKET R OA D, IN FRONT OF OLD
FIRE STATION , KUDLIGI, DIST: BALLARI.
....PETITIONER.
(BY SHRI M .B.GUNDAWADE, ADV OCAT E.)
AND:
STATE OF KARNATAKA
BY SPECIAL PUBLI C PROSECUTOR
HIGH COURT OF K ARNATAKA
DHARWAD BENCH AT DHARWAD
THROUGH PO LICE INSPECTOR
ANT I CORR UPTION BUREAU (ACB) ,
BALLARI.
....RES PONDENT.
(BY SHRI SANTOS H B. MALA GO UDAR , ADV OCATE.)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 4 01 OF
CR.P.C., PRAYING TO SET ASIDE T HE IMPUGNED
ORDER DATED 4.10.2019, PASSE D BY III ADDL .
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DISTRICT AND SESSIONS JUDGE AND SPECIAL J UDGE
(P.C.A CT), BALL ARI (SIT TING AT HOS PETE) IN
SPECIA L CASE NO.5001/ 201 8 DISMISSING THE
APPLICATION FILE D UNDER SECTIO N 239 OF CR.P .C.,
AND TO DISCHARGE T HE PETIT IONER FROM THE
CHARGES L EVELLED AGAINST HIM , E TC.,.
THIS PETIT ION COMING ON F OR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred by accused No.2 namely R .R amanath, aggrieved by the order dated 4.10.2019, passed by III Addl. District and Sessions Judge and Special Judge (P.C.Act), Ballari (sitting at Hospete), in Special Case No.5001/2018, rejecting the application filed by petitioner/accused No.2 under section 239 of Cr.P.C. read with section 5(1) of Prevention of Corruption Act.
2. Brief facts leading to filing of this case are as under:
The ACB police, Ballari, registered a case in Crime No.1/2016 against accused Nos.1 and 2 for the offence punishable under sections 7, 9, 13(1) 3 read with section 13(2) of Prevention of Corruption Act, 1988 ('P.C.Act' for short). The allegations made therein indicate that accused No.1 had demanded Rs.25,000/- as bribe amount from complainant for releasing the amount relating to Gundumunugu Gram Panchayat. On 10.8.2016 at about 12.45 p.m. ACB police, Ballari, laid a trap and were able to trap accused along with bribe money red handed.
3. Thereafter cognizance was taken.
Petitioner/accused No.2 filed an application under section 239 of Cr.P.C. read with section 5(1) of P.C.Act and sought for discharge from the case for the charges levelled against him as prosecution did not make out any offence and no ingredients prima facie was made out to implicate accused No.2 for the aforesaid offence. Accused No.2 pleaded that no prima facie case and accusations were made against accused No.2 and hence allegations made in the complaint and materials collected by the investigating agency do not 4 disclose the ingredients to attract the offence under section 9 of the Act.
4. It is the case of accused No.2 that prosecution implicated him on the basis of petition filed by one C.Veeresh on 5.8.2016 alleging that three years prior to filing of complaint, complainant who was working as a Grade-I Secretary, in charge of PDO of Gundumunugu village gram panchayat of Kudligi taluk filed a complaint against accused Nos.1 and 2 wherein complainant stated that he sent 14 t h financial action plan to the officer of accused No.1 who was Executive Officer of Taluka Panchayat, Kudligi, for which accused No.1 raised some queries and returned the papers to complainant.
5. Despite Complainant therein complying with the objections and submitted all papers to 14th Financial Action Plan, the same was not pressed. It was the case of Complainant that in order to approve the 14th Financial Action Plan, accused No.1 demanded illegal gratification of Rs.25,000/- and ultimately it was settled for Rs.15,000/-. 5 It is further alleged that accused No.2 demanded illegal gratification of Rs.8,000/- and it was then settled for Rs.5,000/-. This being the background of the case, FIR came to be filed and trap panchanama was taken place on 10.08.2016, wherein accused No.2 was apprehended. After detailed investigation Investigating Officer submitted a charge sheet for the aforesaid offence. An application under Section 239 Cr.P.C. came to be filed by the accused No.2 and the same was objected to by the prosecution by filing a detailed objection statement. The trial Court considered the application seeking for discharge and has passed a detailed order, wherein trial Court held that there are sufficient material placed by the prosecution to frame charge and proceed with the matter for the offences punishable under Sections 7, 9, 13(1) r/w Section 13(21) of PC Act.. Accordingly, dismissed the application filed by accused No.2. Aggrieved by the said order of rejection of application under Section 239 Cr.P.C., accused No.2 is before this Court challenging the legality, correctness and propriety of the said order passed by the trial Court. 6
6. Heard Sri M.B.Gundawade, learned counsel for petitioner and Sri Santosh B.Malagoudar, learned counsel for respondent.
7. It is contended by the learned counsel for petitioner - accused No.2 that petitioner is innocent and he has not committed any offence as alleged by the prosecution. He further contends that the impugned order passed by the trial Court is contrary to the material evidence, facts and situation of the case. Hence, the same is required to be reversed.
8. Learned counsel further contends that the impugned order is violative of Section 9 of the PC Act. Learned counsel further contends that the trial Court has failed to appreciate the fact that accused No.2 was working as Computer Operator under the out sourced agency called as 'Manish Man Power Agency'. Therefore, accused No.2 does not come within the definition of 'public servant'. He further contends that accused No.2 is also not paid salary either by Panchayath Office or by the Government. He is only the employee of aforesaid Agency, which is not disputed by the prosecution. 7 Learned counsel further contends that it is also admitted by the prosecution that accused No.2 is not a direct employee of the Government and neither he has been paid any remuneration from the Government. Therefore, the provisions of PC Act would not be applicable to any private employee or private agency, which does not come under the Government. This aspect of the matter has been ignored and not taken into account by the trial Court thereby causing serious miscarriage of justice to accused No.2. Learned counsel further contends that as accused No.2 was only working as Computer Operator, his scope of work is only limited to operation of the computer and he did not have any instructions or guidelines to assist or do any work in the Taluk Panchayath Office at Kudligi or any official related matters. Therefore, when accused No.2 was not designated to do any official work, the question of accused No.2 taking any gratification either to facilitate or perform any favour to the Complainant with regard to any official work, would not arise and the Complaint made against him is only on surmises and conjectures. 8
9. Learned counsel further contends that there are no direct allegations made against accused No.2 for performing any official work, illegal gratification, etc., and there is no direct allegation or material placed before the prosecution to prove the fact that accused No.2 accepted the above stated illegal gratification in performing any official work or to facilitate or induce or influence the public servant for performing of the work of Complainant. Hence, he contends that there being no such material on record to directly implicate the accused No.2 to the above said offences, ex-facie, there are no material and grounds for the trial Court to proceed to frame charge against this accused.
10. Learned counsel further contends that that it is also not the case of the prosecution in the material produced by way of investigation that accused No.2 had the custody of any of the files to perform or induce or influence the Official to do any particular act in favour of the Complainant, which is illegal. Learned counsel further contends that the Taluk Panchayath Office, Kudligi also 9 does not have any power to entrust any official work to accused No.2 except doing computer related operations.
11. Learned counsel further contends that the material allegations against accused No.2 is for the offence punishable under Section 9 of PC Act and the allegations made herein as stated above do not constitute any offence to implicate the accused No.2 and there being no prima facie material to rope in accused No.2, the question of proceeding further to frame charge, does not arise and hence the trial Court ought to have discharged the accused on the application filed under Section 239 Cr.P.C.
12. Learned counsel further contends that that taking into the allegations made in the complaint and charge sheet, the same, however, does not fulfill necessary requirement of Section 9 of PC Act to implecate accused No.2 and proceed further to frame charges against him. Learned counsel further contends that on bare understanding of Section 9 of PC Act even if the allegations are accepted on the face of it, the petitioner does not come within the scope of PC Act.
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13. Learned counsel further contends that there is no allegations of demand and acceptance of bribe as against accused No.2 and hence there is no ground to frame charge against accused No.2. He further contends that the trial Court has not applied its mind and has mechanically passed the order without appreciating the contents and material placed by the accused No.2. Therefore, viewed from any angle the rejection of application is perverse and illegal and the same deserves to be set aside and reversed. Hence, he seeks to allow this petition, set aside the order passed by the trial Court and discharge the accused for the aforesaid offences.
14. Learned counsel for petitioner relied on the judgment of the K.RAMAKRISHNA AND OTHERS vs STATE OF BIHAR reported in AIR 2005 SC 330.
15. Per contra, learned counsel for respondent contends that impugned order passed by the trial Court, is in accordance with the material placed by the investigating agency, after conducting a detailed investigation and record of statement of witnesses and complaint. Therefore, the impugned order is in accordance with law 11 and hence the same does not require any interference by this Court. Learned counsel further contends that the present case pertains to illegal gratification while doing some action by the public servant and other person facilitating such illegal act, it is nothing but a cancer in the system of Government. When the matter pertains to PC Act, the Court will have to deal with the matter with iron hand and curb such mal-practice and illegality which are a menace to the system and corrupting the system. Hence, the order passed by the trial Court is absolutely right and does not call for any interference by this Court.
16. Learned counsel further contends that the trial Court is justified in considering the materials produced by the investigating agency including the voice recording which is filed along with the charge sheet, which clearly attribute the active involvement of accused No.2 in demand, accepting the illegal gratification towards performance of official work in favour of the Complainant. Learned counsel further contends that it is not in dispute that accused No.2 was present at the spot. All material directly attributes receipt of the amount by the accused 12 No.2, which was thereafter transferred and given to accused No.1. Therefore, trial Court is right in rejecting the application of accused No.2. Hence on these grounds he seeks for dismissal of this revision petition and confirmation of the order passed by the trial Court.
17. Learned counsel for respondent relies on the decision of the Hon'ble Apex Court in the case of STATE BY KARNATAKA LOKAYUKTA, POLICE STATION, BENGALURU vs M.R. HIREMATH reported in (2019) 7 SCC 515 at para No.25 and RANGANATH vs STATE OF KARNATAKA reported in 2015 (3) AIR KANT R 332, at para Nos.34, 35 and 36.
18. Having heard learned counsel for petitioner and learned counsel for respondent, the point that arise for consideration before this Court is whether there is any illegality or perversity committed by the trial Court while passing the impugned order rejecting the application under Section 239 Cr.P.C.?
19. To answer the above point, it is relevant to have a look at Section 239 Cr.P.C., which reads as under: 13
"When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
20. While considering the application under Section 239 Cr.P.C., the Court has to keep in mind the Legislative intent while making the provisions under Section 239 Cr.P.C. The Court has to consider broad probabilities, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, would not entitle the Court to make any roving inquiry into the pros and cons. It is important for the Court to keep in mind that at the time of framing of charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. There must exist some materials for 14 entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to to discharge the accused. It is also to be kept in mind that the defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 Cr.P.C. Further, it is not for the Court to decide whether there is any ground to convict the accused, whereas the Court will only have to see whether there are materials and grounds made out to proceed against the accused.
21. While dealing with the application under Section 239 Cr.P.C. or 227 Cr.P.C., this Court cannot act as an Appellate Court and start appreciating evidence by finding inconsistency in the statement of witnesses and the illegality or irregularity in the material placed by the prosecution. Once there is prima facie case made out to proceed to frame charges and once Court comes to a conclusion that there are grounds to proceed further in the matter, then the Court shall proceed to frame charges. It is only in the circumstance, where the trial Court finds that despite having perused the complaint and the charge sheet along with the documents produced that prima facie 15 absolutely no ground is made by the prosecution to frame charges under such circumstance accused shall be discharged.
22. In the present case on hand, as noticed by the trial Court there are sufficient material to proceed with the matter. Therefore, I do not find any material irregularity in the impugned order passed by the trial Court. This Court also does not want to go into merits of the matter as the same would prejudge interest of the accused No.2, it would suffice to mention that the trial Court has appreciated the concern of accused No.2 while considering the application for discharge and also from appropriate material on record based on the complaint and documents alleged along with the charge sheet and documents placed on record, has come to the conclusion that there is sufficient material to proceed against the accused and has accordingly thought it fit to frame charges against the accused No.2. This act of the Court cannot be called as illegal or perverse and the same is in accordance with law. Hence, I answer the above point in the negative. 16
23. The decisions referred to by the learned counsel for petitioner are perused and this Court is in respectful agreement with the ratio laid down by the Hon'ble Apex Court with regard to provisions of Section 239 Cr.P.C., but however, the facts of the case are different and the material placed by the prosecution is different and hence the said decision would not be helpful to the petitioner.
24. Likewise, I find sufficient force in the arguments put forth by the learned counsel for respondent and so also, the judgments relied by him referred to supra.
25. Accordingly, I pass the following order:
ORDER The petition is dismissed.
Sd/-
JUDGE MRK/VK