Karnataka High Court
Vittal Kumar vs The State Of Karnataka By on 2 November, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2018
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRL. P. NO.4858/2016
C/W
W.P. NOS.50088-50089/2014 (GM-RES)
IN CRL. P. NO.4858/2016
BETWEEN:
1. VITTAL KUMAR
AGED ABOUT 48 YEARS
S/O LATE MUDDU HANUMAIAH
R/AT NO.B-8, B BLOCK
POLICE GUEST HOUSE
RAJAINAGAR, BANGALORE-560 010
2. SUDHAKAR
AGED ABOUT 37 YEARS
S/O THIMAIAH, R/AT NO.1016
VEERABHADRA NILAYA
CHANDRA LAYOUT, 1ST PHASE
NAGARBHAVI,
BANGALORE 560 072 ... PETITIONERS
(BY SRI. PRAVEEN C., ADV.)
AND:
1. THE STATE OF KARNATAKA BY
CUBBON PARK POLICE STATION
CUBBON PARK, BANGALORE - 560 001
2. MR. NYAMA GOWDA. B.N.
AGED ABOUT 59 YEARS
S/O NANDYAPPA, WORKING AS
ADDL. SUPERINTENDENT OF POLICE
2
BELGAUM DIST. BELGAUM- 590 001.
3. WENG PING
W/O ZHENG ZHIBIAO
25 YEARS, 1ST CROSS
NEW TIPPASANDRA
BANGALORE - 560 075
PERMANENT ADD: NO.110
NONGQIAOXILU, PUTIAN
CHINA-560 075 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R1;
SRI. NITIN R. ADV. FOR R2 [ABSENT])
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER
DATED 28.03.2014 IN C.C.NO.27697/2014 FOR
OFFENCES FOR OFFENCES U/S 392, 201, 120(B), 384,
212 OF IPC AGAINST THE PETITIONERS NOW PENDING
BEFORE THE VIII A.C.M.M., BANGALORE.
*****
IN W.P. NOS.50088-50089/2014
BETWEEN:
UDHAYA BHASKAR G V
AGED ABOUT 42 YEARS
S/O G VEERAPPA
PRESENTLY WORKING AS
INSPECTOR OF POLICE
CUBBON PARK POLICE STATION
BANGALORE-560 001 ... PETITIONER
(BY SRI. AMIT DESHPANDE, ADV. FOR
SRI. V. SURESH, ADV.)
AND:
1. THE STATE OF KARNATAKA
THROUGH CUBBON PARK
POLICE STATION, REP. BY THE
3
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 001
2. SRI NYAMA GOWDA B N
AGED ABOUT 59 YEARS
S/O NANDYAPPA
PRESENTLY WORKING AS
ADDL. SUPERINTENDENT OF POLICE
BELGAUM DISTRICT
BELGAUM -590 001 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R1;
SRI. NITIN R., ADV. FOR R2 [ABSENT])
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA R/W SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE 1973 PRAYING TO QUASH THE IMPUGNED
ORDER DATED 17.10.2014 IN C.C. NO. 27697 OF 2014
PASSED BY THE COURT OF THE VIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BANGALORE VIDE
ANNEXURE-A IN SO FAR AS THIS EPTITIONER IS
CONCERNED.
******
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 6.09.2018, COMING ON
FOR 'PRONOUNCEMENT OF ORDER', THIS DAY K.N.
PHANEENDRA, J. MADE THE FOLLOWING:
ORDER
The petitioners in Criminal Petition No.4858/2016, are arrayed as accused Nos.1 & 2, whereas the petitioner in Writ Petition Nos.50088-89/2014 is arrayed 4 as accused No.5 in CC No.27697/2014 arising out of Crime No.22/2014, on the file of VIII Addl. C.M.M. Bengaluru.
2. Virtually, in both the cases, the petitioners have sought for quashing of the entire proceedings in CC No.27697/2014 on the file of the Cubbon Park Police Station, Bengaluru. Almost similar grounds have been taken by them in both the cases. Therefore, the above mentioned Criminal Petition and Writ Petitions are clubbed together, heard in detail and a common order is passed.
3. The brief factual matrix which are very important to be noted in these cases are that:
Pursuant to a petition sent to the Assistant Commissioner of Police, Cubbon Park Police Station, dated 21.12.2013, an inquiry was found to be held. Thereafter, the 2nd respondent Nyamagowda registered two complaints one in Crime No.276/2013 and another in Crime No.22/2014, which is later culminated in CC No.27697/2014. Therefore, the factual matrixes of both 5 the cases are little bit relevant for consideration of the claim of the petitioners herein.
4. A lady by name Smt. Weng Ping Wife of Zheng Zhibiao, who has a Nationality of China, claiming to be residing at New Thippasandra Bengaluru lodged a complaint against some unknown Police men, making certain allegations, that a complaint was lodged to Assistant Commissioner of Police. It is stated therein that on 18.12.2013, the said lady received some wooden boxes and she kept five boxes in Rest-Inn Hotel situated in RHP road and she took the remaining five boxes in Innova car to her house. While shifting those boxes, about 4-5 Police men have intercepted this lady near the said hotel and without her permission went to her room in the said Hotel Room No.1104 and enquired about the boxes received by her and also demanded a sum of Rs.10 lakhs for the purpose of saving from registering a case against her and thereafter, they also stealthily took a sum of Rs.1,00,000/- in her hand bag and 300 Chinese Yuan, a Laptop, a Rolex Watch and 1 box containing red sandalwood. On these allegations, 6 the matter was referred to the second respondent, who was then working as Deputy Commissioner of Police at that particular point of time. The second respondent enquired into the matter and submitted a report to the Station House Officer, Cubbon Park Police Station, on 2.2.2014 stating that the said lady Smt. Weng Ping, who lodged the complaint, was given with notice to explain about the contents of the complaint. But she did not appear before the second respondent and on examination of the red sandalwood, he came to know that, the said lady and others, were involved in transporting the red sandalwood to Andhra Pradesh, Tamilnadu and Orissa stealthily in order to have wrongful gain. Therefore, a case was registered by him in Crime No.276/2013 against Deepak, Muniraju, Weng Ping and Zheng Xinhua, for the offence punishable under sections 379 and 411 of IPC and u/s.144 of Karnataka Forest Act. The said case was also investigated by the second respondent i.e., Nyamagowda B.N. He has also stated that he has registered a case against the said lady in Crime 7 No.276/2013. However, he found during the course of enquiry that the petitioners herein and other accused persons have also committed dereliction of duty. Petitioners in the above said Petitions being the Station House Officer and competent officer working in Cubbon Park Police Station has not taken any action against the Police officials who have demanded an amount of Rs.10 lakhs for the purpose of exonerating the said lady Smt. Weng Ping and others and also taken away Rs.1 lakh cash, 300 Chinese Yuan, a Laptop, a Rolex watch and 1 box containing red sandalwood and etc., Therefore, they are all involved in these cases and action should be taken against them also.
5. In this context, it appears, on the basis of the above said report dated 2.2.2014, the Police Inspector, Cubbon Park Police station registered a case against the petitioner in Crime No.22/2014 u/s.120B, 392 and 201 of IPC and investigated the matter and submitted a charge sheet. The charge sheet discloses that CW-1 Smt. Weng Ping, who is an accused in another case and CW-2 Zheng Zhibiao, who is also 8 accused in Crime No.276/2013 and other witnesses who are the Police officials and panch witnesses are the witnesses in the said case.
6. According to the charge sheet, specific allegations have been made against the petitioners in Crime No.22/2014 (CC No.27697/2014) are that:
The petitioner Sri Udaya Bhaskar, in Writ Petition Nos.50088-89/2014 is arrayed as Accused No.5 in the said cases. While he was working as Police Inspector of Cubbon Park Police Station, on 18.12.2013 at about 10.00 p.m., he deputed the Police officials attached to the said Police Station by name Sri Sudhakar and Sri Vittal Kumar, Sri Naraseraju, visited Rest Inn Hotel, went to the room of Smt. Weng Ping, a Chinese Lady and examined five wooden boxes and found red sandalwood in the said boxes and the same was informed him at 10.30. a.m., but he has not taken any action or inform the same to the Station House Officer.
On the other hand, he allowed the said constables to go to the spot and ascertain how many boxes are still there, with that direction, the said Police personnel went 9 to the house of Smt. Weng Ping and found five more boxes in the house and thereafter, in fact those Police personnel, contacted this petitioner, and in-turn, he directed them to shift the said boxes to some other place and also demanded an amount of Rs.10,00,000/- through Police personnel and also not taken appropriate action at right point of time.
7. The allegations made against the petitioners in Criminal Petition No.4858/2016 by name Vittal Kumar and Sudhakar are almost similar. It is stated that these two persons, on 18.12.2013 were working as PC No. 2815 and 8868. They along with other Police personnel by names Sri Kumar and Sri Narasaraju, had been to Hotel Rest Inn and met a foreigner by name Smt.Weng ping, and stated that she is a foreigner and resident of China. They examined her and found some boxes containing red sandal wood. Investigating Officer seized the sandalwood boxes, but they did not take any action to seize the same. On the other hand, they shifted the said boxes to a dilapidated house situated in Museum road, without even informing the same to the concerned 10 higher authorities. It is alleged that they also demanded a sum of Rs.10 lakhs for the purpose of releasing those boxes and to exonerate the said lady. It is also alleged that they also went to the house of the said lady and found five more boxes containing red sandalwood, but they have not informed the same to the Station House Officer or to anybody. It is also alleged that, on the same day, they also went to room No.1104 in Rest-in Hotel and stealthily taken Rs.1,00,000/- cash from her hand bag, a laptop, and a Rolex watch etc.,
8. On the basis of the above said charges, the accused persons are facing trial. The petitioners Vittal Kumar and Sudhakar in Criminal Petition No.4858/2016 are arrayed as accused Nos.1 & 2, whereas the petitioner - Udaya Bhaskar, is arrayed as accused No.5 in Writ Petition Nos.50088-89/2014.
9. The learned counsels in both the cases are almost raised similar set of grounds seeking quashing of the above said proceedings. It is submitted that the allegations are baseless and it is nothing but abuse of 11 process of law. The second respondent who has actually lodged complaint against the petitioners, himself has investigated the matter and submitted charge sheet. Therefore, he has totally interested in the particular case. No other Investigating Officers have investigated the matter.
10. It is seen that, the petitioners are public servants within the meaning of Section 21 of the Indian Penal Code. In the report of the second respondent, it is specifically alleged that there was dereliction of duty in not informing their activities as noted above to the Station House Officer and illegally they had transported the red sandalwood boxes to an isolated place and demanded Rs.10 lakhs bribe. But, those allegations are all false allegations made against them by Smt. Weng Ping, in this regard. As the public servants have alleged to have committed dereliction of duty, but no sanction was taken to prosecute against them, which is an absolute requirement u/s.197 of Cr.P.C. Even though it is specifically alleged that they made a demand for Rs.10 lakhs as bribe, the provisions of prevention of 12 corruption Act has not been invoked in the charge sheet for the reasons best known to the Investigating Officer. The Investigating Officer Sri Nyamagowda (2nd Respondent herein) though was transferred but he has filed charge sheet, even after his transfer, by anti dating the charge sheet filed to the court against the petitioners, which shows the malafide intention on the part of the said officer. Therefore, criminal court cannot try such an offence without there being any provision under the Prevention of Corruption Act, invoked.
11. Further, it is also contended that, considering the above said malicious attitude of the second respondent Sri Nyamagowda, the petitioners have approached the department and filed a complaint for taking action against the said person. In fact, the departmental enquiry has been initiated against the said Nyamagowda alleging that he has maliciously initiated criminal proceedings against the petitioners herein and action has been taken against him and he was found guilty. Therefore, it is very much clear that the said charge sheet has been filed with vengeance and 13 maliciously involving the petitioners. Therefore, the said proceedings have to be quashed.
12. Further, it is contended that on the basis of the report submitted by Sri Nyamagowda, the departmental enquiry has also been initiated against the petitioners herein and a detail inquiry has been conducted and in the said enquiry, the Enquiry Officer and as well as the Disciplinary authority found that the petitioners have not at all committed any offence as alleged in the charge sheet and consequently, exonerated them in the departmental proceedings. On the other hand, taken action against the second respondent - Nyamagowda for having filed a false and malicious charge sheet against the petitioners. Therefore, all the above said factors clearly discloses that it is a false case foisted against the petitioners. Hence, for all these reasons, the petitioners have sought for quashing of the proceedings.
13. Before adverting to appreciate the factual aspects of the case with reference to the grounds urged 14 before this court, seeking quashing of the entire proceedings, it is just and necessary to bear in mind as to under what circumstances, the court can quash a criminal proceedings against the accused persons. It is worth to mention here the decision of the Hon'ble Apex Court reported in 1992 SUPP (1) SCC 335 between STATE OF HARYANA and BHAJANLAL AND OTHERS, wherein the Hon'ble Apex Court though has not extensively dealt with the guidelines as to under what circumstances, Section 482 of Cr.P.C. can be invoked by the High Courts, but issued certain guidelines and also explained certain circumstances, which are very helpful to dispose of these petitions. In the said decision, the Apex Court has held thus:
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 of Cr.P.C. can be exercised by the High Courts either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly 15 defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by Police officers u/s.156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the un-controverted allegations made in the First Information Report or complaint, and the evidence collected in support of the same do not disclose the commission of any offence and make-out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but 16 constitute only a non-cognizable offence, no investigation is permitted by a police Officer without an order of a Magistrate as contemplated u/s.155(2) of the Code.
(v) Where the allegations in the First Information Report or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.17
Now, let me consider whether these cases falls within any of the guidelines mentioned in the above said decision.
14. In the afore cited Bajanlal's case, amongst the guidelines, the petitioners have relied upon the guidelines issued contending that the allegations made in the entire charge sheet papers filed against the petitioners are so absurd and inherently improbable and on that basis, no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. And another ground is that there is an express legal bar engrafted u/s.197 of Cr.P.C. and also u/s.19 of the Prevention of Corruption Act, that the prosecution agency has to take sanction from the appropriate authority as they have not taken, therefore, the proceedings are vitiated.
15. Lastly, it is contended that the Criminal proceedings are manifestly initiated with malafides on the part of the Investigating Officer (second respondent herein) and in fact he has maliciously instituted a false 18 case with an ulterior motive to wreck vengeance on the accused and with a view to spite them due to private and personal grudge.
16. Elaborating the arguments before the court, the learned counsel for the petitioners firstly contended that if the entire materials placed before the court including the documents produced by the accused are seen, it reveals that they are not disputed either by the State or the other side. It clearly discloses that the allegations made against the petitioners in the charge sheet are not supported by any materials. On overall reading of the entire materials, no prudent man can ever reach a just conclusion that there are sufficient grounds for proceeding against the accused.
17. Secondly, it is contended that the whole allegations against the petitioners are that while discharging their duties as Police Officials, they have not properly exercised their powers and discharged their duties with reference to registration of a case against the said lady Smt. Weng Ping and seizing of the articles 19 and not producing the same before the Police Station. Therefore, all the above said allegations are made while the petitioners discharging their duty. Therefore, Section 197 of Cr.P.C. is a bar to initiate criminal proceedings as there is no sanction taken by the respondent - State to prosecute the accused persons. Further, there is an allegation against the petitioners that they have demanded Rs.10 lakhs from the complainant by name Smt. Weng Ping in the said charge sheet, but they have not invoked the provisions of the Prevention of Corruption Act, as under the said enactment, demanding of gratification itself is an offence. Therefore, without invoking the provisions under the Anti Corruption Act, the trial Court has no jurisdiction to deal with that particular aspect, even u/s.19 of the Prevention of Corruption Act, no sanction have been taken. Therefore, the proceedings are vitiated.
18. Lastly, elaborating their arguments, they have submitted that the Investigating Officer has maliciously initiated the case; without the sanction from 20 the Government. Further added to that, he has maliciously collected the material against the petitioners and further, it is contended that petitioners have also made allegations against the Investigating Officer and a Departmental inquiry was conducted against him and that,he was found guilty for maliciously prosecuting the petitioners in filing the charge sheet against them. On the other hand, in the Departmental enquiry, all the petitioners were exonerated from the allegations made in the charge sheet. Therefore, it can be safely held that the proceedings are maliciously instituted by the Investigating Officer Sri Nyamagowda with an ulterior motive to wreck vengeance against the petitioners.
19. In the above said background, now first let me consider whether the documents which are produced in the Departmental Enquiry proceedings can be taken into consideration by this court for the purpose of dealing with this matter or not.
20. In this context, it is worth to mention here a decision of the Hon'ble Apex Court reported in (2013) 21 3 SCC 330 between Rajiv Thapar and others and Madan Lal Kapoor, wherein, the Hon'ble Apex Court has laid down certain steps as to under what circumstances, the materials produced by the accused can be relied upon, at paragraphs 30.1 to 30.5, in the following manner:
"The following steps should be followed by the High Court to determine the veracity of a prayer for quashing of proceedings raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
(1) Step One: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e., the material is of sterling and impeccable quality?
(2) Step Two: Whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e, the material is such as would persuade a reasonable person to dismiss 22 and condemn the factual basis of the accusations as false?
(3) Step Three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
(4) Step Four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
(Paras 30.1 to 30.5) 23
21. In these cases, firstly, the accused petitioners want to rely upon the departmental enquiry proceedings which were initiated against them and they were after due inquiry, examination of the prosecution witnesses on the same charges as laid by the Investigating Officer in the charge sheet before the criminal court, they were exonerated. Secondly, they have also relied upon the documents to show that, they have made allegations against the Investigating Officer (Second respondent herein) before the competent authority and the competent authority has taken action against the Investigating Officer Sri Nyamagowda and he was found guilty for falsely implicating the petitioners in a criminal case and also found that, with all interestedness filed a false charge sheet even after he was transferred from that particular place, i.e., after handing over the charge to the other person, by anti dating the charge sheet, he has filed the charge sheet to the court.
24
22. The above said proceedings which were taken place before the competent authorities are not denied either by the said respondent Sri Nyamagowda or by the State. On the other hand, the learned High Court Government Pleader has accepted that those proceedings are actually taken place before the competent authorities and also admitted the above said factual aspects in holding that the Investigating Officer Nyamagowda was found guilty and the petitioners herein, were not found guilty in the Disciplinary proceedings on the same charges and they were exonerated. Therefore, when the factual aspects are not denied, the proceedings before the competent authority was accepted. In view of the above said decision, as there is no reason to discard the above said materials on record, I will consider the consequences of those proceedings before the disciplinary authorities with reference to these cases little later.
23. The petitioners in Criminal Petition are before this court u/s.482 Cr.P.C. as noted above, challenging 25 the entire proceedings of the trial Court; though they were having alternative remedy available either u/s.397 or u/s.227 of Cr.P.C. before the trial Court.
24. It is worth to refer here a decision of the Hon'ble Apex Court reported in (2017) 13 SCC 317 between Vijay and another & State of Maharashtra and another wherein the Hon'ble Apex Court has observed thus:
"Section 482 of Cr.P.C. - availability of alternative remedy held - availability of alternative remedy cannot be a ground to disentitle the relief u/s.482 of Cr.P.C. It all depends upon the facts and circumstances of each case."
25. Before adverting to whether exoneration in the departmental enquiry itself is solely sufficient to quash the proceedings before the trial Court and what is the law on this point, it is just and necessary to go through the factual aspects of these cases to consider the grounds taken up by the petitioners herein. 26
26. The charge sheet filed against the petitioners in CC No.27697/2014, discloses that there are as many as 23 witnesses. Out of them, CW-3, CW-4, CW-5, CW- 11, CW-15 and CW-16 were all examined in the departmental enquiry proceedings and they have supported the case of the accused. On the basis of that, the petitioners were exonerated in the departmental enquiry on the allegations made in the charge sheet.
27. It is seen from the records that the allegations made in the charge sheet are that:
27.1. The petitioners who were on duty as Police Personnel on 8.12.2014, particularly accused persons 1 & 2 had been to the Rest Inn Hotel and also the house of CW1 Smt. Weng Ping and collected 10 boxes containing red sandalwood and also demanded a sum of Rs.10 lakhs to exonerate her from initiating any case against her for having illegal possession of 10 boxes of red sandalwood. It is further alleged that they have taken up 300 Chinese Yuan, a lap top, a Rolex watch 27 and etc., and also the petitioner in the Writ Petitions, accused No.5 knowing fully well supported A1 and A2 in this regard. On the same allegations, the disciplinary inquiry has also been held. In the said case CWs.3 & 4 and also CW-5 were examined as PWs.1, 5 and 6 and in the Departmental enquiry, they are all panch witnesses to three panchanamas were drawn on 7.2.2014, 27.12.2013 and also in the month of February, 2014, without mentioning the date. In all these panchanamas, it is only stated that the accused persons and the panch witnesses have gone to the place where the offence has been committed by the accused persons and that they have collected ten boxes of red sandalwood and demanded Rs.10 lakhs as well as taken away the articles as noted above belonging to CW-1 Smt. Weng Ping.
27.2 Other witnesses particularly Mr. Ramraj, examined as PW.2 is a driver of Innova Car, who actually shifted five boxes of red sandalwood belonging to CW-1 and he has stated before the Police u/s.161 of Cr.P.C. that the accused persons who were in civil dress 28 have demanded an amount of Rs.10 lakhs and the said lady told that they have also taken away some articles belonging to CW-6 Regan James and has also stated that some of the boxes containing red sandalwood were taken away by Accused No.1.
27.3 CW7 F. Stevan (Selvan), who is examined as PW-1 has not implicated any of the accused persons, but he has only came to know that accused have demanded Rs.10 lakhs and taken away some of the valuables belonging to CW1. He is not an eye-witness, but he is an hearsay witness.
27.4. One Mr. Kumara Gowda CW-8 was also an hearsay witness. He also never stated or implicated any of the accused persons, but he only stated that Smt. Weng Ping has given a complaint and in that complaint, she has alleged against accused Nos.1 & 2. He has also made allegations against the said lady Smt. Weng Ping that she has not given any answer with regard to illegal possession of the red sandalwood containing boxes.
Therefore, Police have suspected her that she has been 29 in the habit/business of stealthily transporting the sandal wood to other States.
27.5. Mr. R. Kumar, CW-9 has also similarly stated as that of CW-8.
27.6. CW-11 G.K.Neelakanta has implicated Accused No.2 only to the effect that he has seen accused No.2 with five cartoon boxes containing red sandalwood in a Innova car on 18.12.2013.
27.7 CW-12 Naveen Kumar is also an hearsay witness. He has stated that he came to know about the registration of the case against the petitioners herein and demand of Rs.10 lakhs and also taking of some valuables of CW-1. He is not an eye-witness to the incident 27.8 Mr. K.K. Sadanand, CW-13 has also stated in the similar fashion as that of CW-12 before the Investigating Officer.
27.9 Likewise, Mr. Shivalingaiah, ASI, CW-15, who is examined as PW-3 has stated in the Police 30 Station, that CW1 has identified the accused Nos.1 and 2, as the persons who were taken away 10 boxes containing red sandalwood and demanding of Rs.10 lakhs, and also taking away some valuables of her. He turned hostile in the departmental inquiry.
27.10. CW-16, Mr. Bharath, PSI, who is an important witness, examined as PW.7, has stated that in the Police station accused Nos.1 & 2 have produced the red sandalwood boxes. But he also not fully supported the case during the course of Departmental enquiry.
27.11. One Mr. Vittal Kumar and the other witnesses Mr. K.N. Subramani, CW-17 Ramakrishna, CW-18 and Basavaraju, CW-19 Muniraju, CW-20, Manjappa, CW-21 and CW-22 Balaraj are all Police witnesses who were appointed for the purpose of apprehending the accused persons. Therefore, the witnesses who were examined before the Departmental enquiry are the relevant witnesses even to the criminal case before the trial Court.
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28. Now, let me see what has been considered before the Departmental enquiry against the accused persons and what is the finding given therein.
29. It is an undisputed fact that, same allegations are made in the departmental proceedings also in No.ACP-DE.2/2014 dated 1.7.2016, wherein the committee constituted for conducting departmental enquiry against accused Nos.1, 2 & 5, after detailed enquiry has given a report to the Commissioner of Police, Bengaluru City, dated 1.7.2016 on the basis of which, the Commissioner of Police in Order No.8/DE/1/R-6/2014 dated 21.2.2017 exonerated the accused Nos.1, 2 & 5 and others from the allegations made against them in the departmental enquiry. The said order is marked at Annexure-G to the petitions. In the said order at page No.1, at paragraphs 1 to 3, the charges leveled against A5 is exonerated. At page No.3, the charges leveled against accused Nos.1 & 2 are exonerated and also considering the evidence on record, the Disciplinary Authority, the Police Commissioner 32 Bengaluru City has come to the conclusion that the offences alleged against accused Nos.1, 2 and 5 and others have not been established. Therefore, exonerated the accused persons for the above said allegations.
30. The report of the Enquiry Officer, Enquiry Committee is also made available. I have carefully perused the enquiry report submitted. In the enquiry report, it is categorically stated that the witnesses examined have not supported the case of the prosecution, but they have stated that the incident has not happened as stated in the charge sheet.
31. According to the charge sheet, one witness PW-2 Ramaraju has stated that accused Nos.1 & 2 along with other two Police personnel who were in the civil dress, have all took the cartoon boxes from the Hotel and then they took them to somewhere else, but in the evidence before the Enquiry Officer, they have stated that there were nine carton boxes, which were taken away by those Police officers in his vehicle to the 33 cubbon park Police Station and in the Cubbon park Police Station, they have un-loaded nine carton boxes and send back this witness after taking signature on white papers. Therefore, the allegations that accused Nos.1, 2 and other Police Officers have shifted five cartoon boxes somewhere else and thereafter produced in the Police Station when the Investigating Officer Sri Nyamagowda has taken serious objections for non production of the said carton boxes. Therefore, the allegations against A1 and others that they have shifted five cartoon boxes somewhere else for the purpose of demanding Rs.10 lakhs is also not supported by any of the witnesses before the Departmental inquiry. There is no materials as such produced even in the charge sheet that accused No.5 in any manner instructed accused Nos.1 & 2 to demand Rs. 10 lakhs or to shift the cartoon boxes to somewhere else or that he has not taken any appropriate action in this regard. No witnesses have in fact stated so far as this aspect is concerned, even in the charge sheet or before the departmental enquiry proceedings. There is also no material in the charge 34 sheet that, though it is alleged that accused Nos.1 & 2 and others have taken away Rs.1 lakh cash, a Rolex watch, 300 Chinese Yuan and a Laptop. But there is absolutely no recovery of any one of these articles from anybody. This has also been categorically considered in the Departmental enquiry and held that the said allegations are not established even on preponderance of probabilities. Therefore, the allegations made against accused Nos.1, 2 & 5 who are the petitioners herein have been in detail considered in the Departmental Enquiry and held that Accused Nos.1, 2 & 5 have not committed any offence and it is not established. The said report was submitted by the Enquiry Officer as noted above in ACP/DE/2/2014 dated 1.7.2016. On the basis of which, accused Nos.1, 2 and 5 have been exonerated.
32. The other allegations against accused No.5 is that he has actually allowed accused Nos.1 & 2 to escape from the clutches of law, therefore, he has permitted them to go on medical leave. Admittedly, the criminal case was registered against accused No.5 by 35 the complainant Smt. Weng Ping and seized the articles in connection with Crime No.267/2013. Therefore, the question of, he assisted Accused Nos.1 & 2 to escape along with five boxes containing red sandalwood is also not supported by any materials, in the charge sheet filed against the petitioners. The case against the petitioners were registered on 2.2.2014 in Crime No.22/2014 by that time, Crime No.276/2013 was already registered against the said lady Smt. Weng Ping. Perhaps, due to that reason, a counter complaint must have been lodged by the said Smt. Weng Ping in order to avoid herself in connection with case in Cr.No.276/2013.
33. Sofaras the Medical report filed along with the charge sheet is concerned, it is a document dated 21.1.2014 given by accused Vittal Kumar. He has stated that he has taken permission from 21.1.2014 to 19.2.2014. Therefore, he requested for issuance of MSH book for those days. Accordingly, accused No.5 alleged to have given the MSH book. Even considering this, which is no way connects the date of incident 36 because according to the prosecution, the date of incident occurred on 18.12.2013, but this MSH was of the dates i.e., 21.01.2014 and 10.02.2014, therefore, immediately after the incident, there was no escapism by accused Nos.1 & 2 in this regard. Therefore, that allegation is also falsified even on the basis of the charge sheet papers itself.
34. Learned High Court Government Pleader has raised an important point that CWs.1 & 2 are the important witnesses who spoke about the demand of Rs.10 lakhs and CW1 Smt. Weng Ping, is the witness who has stated about taking away of valuables by accused Nos.1 & 2. Therefore, non examination of the said lady before the Departmental enquiry is fatal and she may go to the criminal court and depose against the accused. Therefore, at this stage, it is not fair to quash the proceedings.
35. In this regard, it is seen from the Departmental Enquiry report dated 1.7.2016 at paragraph 8, it is categorically observed that summons 37 and notices were issued to Smt. Wing Ping to appear before the Departmental Enquiry Committee on 18.9.2014, 15.10.2014 and 30.10.2014 to the address given by her and thereafter, the Enquiry Officer came to know through the concerned Police that about 9 months prior to the said issuance of the notice, the said lady has vacated the house situated at No.71, first cross road, Venkat colony, New Thippasandra, Bengaluru and on 5.3.2014 itself, she went back to China as per the report of the immigration officers. Therefore, examination of the said lady could not be done, because of her non availability. Even it goes without saying that she did not show any interest, after the offence being committed by her. Perhaps that may be the reason in order to escape herself from the case registered against her, she must have gone back to China. Therefore, securing of that lady even before the Criminal court is also difficult as she has already went to China as she is the citizen of China. Therefore, that ground alone is not sufficient to consider that if she would have been examined, she would have implicated accused nos.1 & 38
2. Even considering her statement, throughout, there is absolutely no allegations made against accused No.5 at any point of time. Therefore, in my opinion, that ground is not sufficient to hold that the prosecution can prove its case. Even otherwise as I have already noted that Ramraj, who is the witness for demand of Rs.10 lakhs and taking away of valuables of accused Nos.1 & 2 belonging to the said lady CW1 has turned hostile to the prosecution in the Departmental inquiry. Therefore, on looking to the departmental inquiry report, a detailed thorough enquiry has been made examining almost all the charge sheet witnesses on the same allegations made against accused Nos.1, 2 & 5 therefore, the same cannot be easily ignored.
36. Apart from the above, it is the allegations of the accused Nos.1, 2 and 5 that because of the vengeance, the respondent No.2 Mr. Nyamagowda has filed a false case against the accused persons. In this regard, they have lodged a complaint before the Police Commissioner, Director General and Inspector General of Police, Bengaluru, making allegations that he has 39 falsely implicated accused Nos.1, 2 and 5 in CC No.27697/2014 and he has in fact, even after his transfer, anti-dated the charge sheet, filed before the court, which show that he has malicious intention and interestedness to falsely implicate accused Nos.1, 2 and
5. In this regard, the learned counsel have also brought the materials placed before the court.
37. The charge sheet was filed in CC No.27697/2014 on 11.7.2014. Before that, on 18.12.2013 itself, the said Nyamagowda has sought for permission, due to his transfer, to handover the said investigation to ACP Cubbon Park police and on 17.9.2014, the Police Commissioner has directed the further investigation by ACP Cubbon Park, but on 11.7.2014, the said respondent No.2 Nyamagowda has given the said charge sheet to the Public Prosecutor for scrutiny. On 10.10.2014, the said Nyamagowda has also written a letter to permit him to handover the records to the ACP, Cubbon Bank for investigation. Considering all these letters, in the departmental inquiry, it was held that these transactions have been 40 made and on 20.10.2014, the records were shown to have been handed over to ACP, Cubbon Park, but it is shown that on 11.7.2014 itself, the charge sheet was filed by anti dating the same.
38. The departmental enquiry has been initiated against Nyamagowda on the basis of the complaint lodged by A1, A2 and A5 in No. DCP: AAPARADHA:
2/2016 and after thorough enquiry by the Enquiry Officer i.e., Assistant Additional Police Commissioner, submitted a report on 30.6.2016 stating that accused Nos.1, 2 and 5 have been falsely implicated by the said Nyamagowda and in discharge of his official duty even without taking permission from the department, filed a charge sheet against A1, A2 and A5 and others and therefore, the allegations made against him are found to be true. Therefore, recommended for taking appropriate action in this regard. Therefore, the above said report which is based on materials on record play a dominant role in this case to ascertain whether the said Nyamagowda has so interested in filing charge sheet against the petitioners herein.41
39. It goes without saying that the said Nyamagowda himself has made allegations against A1, A2 and A5 (petitioners herein) which prompted the department to initiate departmental proceedings. He himself virtually was the complainant against the accused Nos. 1 & 2. But he himself has investigated the matter and filed the charge sheet against the accused persons. This also indicates the interestedness on his part.
40. The allegations made in the charge sheet are all virtually made by the Investigating Officer (2nd respondent) himself. In that eventuality, he would not have investigated the matter and would have entrusted the same to some other Police Officer to investigate so as to have fair investigation so far as the petitioners are concerned. This is also a serious lapse to be taken into consideration by this court.
41. Looking to the above said facts and circumstances of the case, whether the departmental enquiry proceedings held against the said Nyamagowda 42 holding him as guilty in prosecuting the petitioners by filing a false charge sheet and on the other hand, in the departmental proceedings, the accused persons/ petitioners being exonerated from the enquiry, so far as these petitioners are concerned, can be relied upon to quash the proceedings against the petitioners.
42. In this context, it is worth to refer a decision of the Hon'ble Apex Court reported in (2013) 11 SCC 130 between LOKESH KUMAR JAIN AND STATE OF RAJASTHAN wherein the Hon'ble Apex Court, at Head Note has held thus:
"Cr.P.C., 1973 - Ss.482, 154, 156(3), 157(1) proviso (b), 158 and 91 - Quashment of FIR/Complaint - Grounds necessitating quashing of FIR in present case - (a) Exoneration in departmental proceedings of charges identical as those in criminal case,
(b) though CAG report indicating financial irregularity and probable misappropriation by appellant, the bills and their carbon copies which could have shown who received the money, not being available, (c) delay of 13 years in investigation, (d) delay not being on 43 account of appellant but due to lack of evidence and/or complainant not being able to provide the same, (e) in fact investigating authority i.e., Police filing closure report u/s.157(1) proviso (b), Cr.P.C. due to lack of evidence but Magistrate directing re-
investigation u/s.156(3) on assurance of the complainant that evidence would be provided but complainant failing to provide the same, and (f) there being no probability of finding any original documents/incriminating evidence, rather there being silence on the part of complainant regarding this - Effect - Held, this is a fit case for quashing of the FIR
- FIR therefore, quashed and appeal allowed."
On reading the above said decision, it is clear that petitioners are exonerated from the Departmental enquiry, on the charges levelled in those criminal cases. When other circumstances in a particular case, if the court is of the opinion that there is a strong suspicion with regard to the case of the prosecution and there is no chance of the case end up in conviction, in such matters, in order to avoid wastage of valuable judicial 44 time, the court can exercise power u/s.482 of Cr.P.C. to quash such proceedings.
43. Applying the above said principles, in this particular case, considering not only departmental enquiry proceedings against the second respondent Nyamagowda, being held that he was guilty of filing a false case against the petitioners and on the other hand, the accused petitioners were exonerated from the charges and further, the Investigating Officer himself was the complainant, who filed the charge sheet, in my opinion, this is a fit case where the court can exercise discretion u/s.482 of Cr.P.C. to quash the proceedings.
44. Apart from the above, it is also observed that demanding of bribe of Rs.10 lakhs, has been alleged against accused Nos.1, 2 and 5 from the complainant Smt. Weng Ping. In such an eventuality, the provisions under the Prevention of Corruption Act should have been invoked by the Investigating Officer. The rest of the allegations that they have not produced nine boxes containing red sandalwood immediately 45 before the Police Station enabling the SHO to register a case and to seize the same and that the accused No.5 has not registered a case and seized those boxes by registering a case and allowing accused Nos.1 & 2 to escape from the clutches of law are all the allegations which are referable to the duties of the Police personals i.e., Accused Nos.1 & 2 and 5. In such an eventuality, Section 197 of Cr.P.C. comes into play as to while discharging their duties, whether they have exceeded their limits and committed any offence or not. Therefore, in both the counts, the Investigating Officer should have taken sanction to prosecute the accused persons, i.e., the reason why in the departmental enquiry held against respondent No.2 Nyamagowda. It is observed by the Enquiry Officer that without obtaining sanction from the Government, charge sheet was filed by him and that was also one of the allegations made against him, held to be true. Therefore, looking from the above said facts and circumstances of the cases; I am of the opinion that there is strong suspicion with regard to the complicity of the accused into the crime. 46 Mere suspicion may be sufficient to allow the prosecution to proceed against the accused persons. But strong suspicion created in the mind of the court, in my opinion, is sufficient at this stage to quash the entire proceedings against the present petitioners.
45. For the above said reasons, I proceed to pass the following order:
ORDER The petitions are hereby allowed.
Consequently, the Order dated 17.10.2014 passed by the VIII Addl. CMM, Bengaluru, and all further proceedings in CC No.27697/2014 arising out of Crime No.22/2014, insofar as these petitioners are concerned, is hereby quashed.
Sd/-
JUDGE PL*