Karnataka High Court
Sri B Y Raghavendra vs Sri Vinod B on 5 February, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
WRIT PETITION NO.38135 OF 2012
C/W
WRIT PETITION NO.38134 OF 2012
WRIT PETITION NOS.38460-38463 OF 2012
WRIT PETITION NO.38135 OF 2012:
BETWEEN:
Sri.B.Y.Raghavendra,
S/o B.S.Yeddyurappa,
Aged about 40 years,
Residing at "Maitri",
7th Cross, 2nd Block,
III Stage, Vinobha Nagar,
Shimoga - 577 201.
...Petitioner
(By Sri.Ashok Haranahalli, Senior Counsel for
Sri.Prabhuling K.Navadgi, Advocate)
AND:
Sri.Vinod.B,
S/o late Sri.Ommen Baby,
Aged about 47 years, Advocate,
Office & Residence at
'Beena Villa' (Upstairs),
Kuvempu Road,
Shimoga - 577201.
...Respondent
(By Sri.M.S.Shyam Sundar, Advocate)
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This Writ Petition is filed under Articles 226 and
227 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure praying to quash the
initiation of proceedings by the respondent herein by
private complaint vide Ann-B dt.21.5.12 by the Court of
XXII Addl. City Civil & Sessions Judge & Special Judge
for Prevention of Corruption Act, Bangalore in
P.C.R.No.29/12 & also the order dt.4.9.12, issuing
summons to the petitioner by the Court of XXIII Addl.
City Civil & Sessions Judge & Special Judge for
Prevention of Corruption Act, Bangalore in
P.C.R.No.29/12, vide Ann-E and etc.
WRIT PETITION NO.38134 OF 2012:
BETWEEN:
Sri.B.S.Yeddyurappa,
S/o late Sri.Siddalingappa,
Aged about 70 years,
Member of Karnataka
Legislative Assembly,
R/a No.381, 6th Cross,
RMV 2nd Stage,
Bangalore - 560 094.
...Petitioner
(By Sri.Ashok Haranahalli, Senior Counsel for
Sri.Prabhuling K.Navadgi, Advocate)
AND:
Sri.Vinod.B,
S/o late Sri.Ommen Baby,
Aged about 47 years, Advocate,
Office & Residence at
'Beena Villa' (Upstairs),
Kuvempu Road,
Shimoga - 577201.
...Respondent
(By Sri.M.S.Shyam Sundar, Advocate)
:3:
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure praying to quash the
initiation of proceedings by the respondent herein by
private complaint vide Ann-B dt.21.5.12 by the Court of
XXII Addl. City Civil & Sessions Judge & Special Judge
for Prevention of Corruption Act, Bangalore in
P.C.R.No.29/12 & also the order dt.4.9.12, issuing
summons to the petitioner by the Court of XXIII Addl.
City Civil & Sessions Judge & Special Judge for
Prevention of Corruption Act, Bangalore in
P.C.R.No.29/12, vide Ann-E and etc.
WRIT PETITION NOS.38460-38463 OF 2012:
BETWEEN:
1. B.K.Somashekar,
S/o late B.R.Krishnamurthy,
Aged about 67 years,
Residing at H.I.G.47,
K.H.B.Colony, Kallahalli,
Vinobanagar Extension,
Shivamogga,
Pin Code: 577 201.
2. Smt.Adilakshmamma,
W/o late B.R.Krishnamurthy,
Aged about 86 years,
Residing at H.I.G.47,
K.H.B.Colony, Kallahalli,
Vinobanagar Extension,
Shivamogga,
Pin Code: 577 201.
3. Smt.B.S.Umadevi,
W/o late B.K.Somashekar,
Aged about 47 years,
Residing at H.I.G.47,
K.H.B.Colony, Kallahalli,
Vinobanagar Extension,
Shivamogga,
Pin Code: 577 201.
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4. B.K.Radhamani,
D/o late B.R.Krishnamurthy,
Aged about 69 years,
Residing at 'Srinidhi',
5th Cross, Rajendranagara Extension,
Shivamogga,
Pin Code: 577 201.
...Petitioners
(By Sri.Sathish M.Doddamani, Advocate)
AND:
Sri.Vinod.B,
S/o late Ommen Baby,
Aged about 47 years, Advocate,
Office & R/at
'Beena Villa' (Upstairs),
Kuvempu Road,
Shivamogga - 577201.
...Respondent
(By Sri.M.S.Shyam Sundar, Advocate)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure praying to quash the
order dated 27.5.2012 passed in Spl.C.C.No.174/2012
[P.C.R.No.29/2012] on the file of the learned XXIII Addl.
City Civil & Special Judge for Prevention of Corruption
Act, Bangalore as per Annexure-B and etc.
These Writ Petitions coming on for Preliminary
Hearing in 'B' Group, on this day, the Court made the
following: -
ORDER
As all these petitions relate to one and the same case pending before the Special Court for Lokayukta :5: cases in Bangalore in Spl.C.C.No.174/2012 [P.C.R.No.29/2012], these petitions were heard together and are being disposed of by this common order.
2. Writ Petition No.38135/2012 is by accused No.1. Writ Petition No.38134/2012 is by accused No.2 and Writ Petition Nos.38460-38463/2012 are by accused Nos.3 to 6 in the above said case.
3. Respondent Vinod.B filed a private complaint under Section 200 of Cr.P.C. against these petitioners and another before the Special Court for Lokayukta cases in Bangalore in P.C.R.No.29/2012 alleging various offences punishable under Sections 420 and 120(b) of IPC and Section 13(1)(c), 13(1)(d) of Prevention of Corruption Act. The offences alleged are related to certain immovable properties situated at Hunasekatte Village, Bhadravathi Taluk, Shimoga District. The sum and substance of the allegations made in the complaint are that the said lands originally owned by one S.J.Mathais. The said land measuring in all 69 acres was purchased by accused 1 and 2 benami in the :6: names of accused Nos.3 to 6. Thereafter, application for conversion of agricultural land to non-agricultural purposes namely for industrial purpose was filed before the Deputy Commissioner, Shimoga District. But at the instance of accused No.1 who was by then the Chief Minister of the State, 75% of the conversion fee was waived off and only 25% of conversion fee was directed to be paid and thereby caused loss of more than Rs.11,00,000/- to the State Exchequer and subsequently, in violation of the terms and conditions of the conversion order, the said converted lands was sold in favour of Dhavalagiri Property Developers Private Limited of which accused No.2 was a Director. This act was done in pursuance of a conspiracy held in Bangalore. It is also alleged that the land in question was adjacent to the Hunasekatte Reserve Forest land and it is within 10 kms radius of the Bhadra Tiger Reserve which falls in the Eco sensitive zone of the Tiger Reserve. The authorities have given approval for setting up of industries without the applicants obtaining a 'No Objection Certificate' from the Chief Wild Life Warden :7: which is mandatory. It is also alleged that there has been an encroachment of forest land reserved for project tiger. Thus, according to the complainant, accused Nos.1 and 2 being public servants have committed offence of Criminal Misappropriation defined under Section 13(1)(c) and criminal breach of Trust defined under Section 13(1)(d) which are punishable under Section 13(2) of the Prevention of Corruption Act read with Section 420 of IPC, and accused are also guilty of offence punishable under Section 120 (B) of IPC. Regarding the territorial jurisdiction of the Court, it is stated in the complaint that though the lands are situated in Shivamogga District, the entire transactions have taken place from Bangalore where the seller of the land Sri.M.J.Mathais also resided; that the conspiracy for this land deal was hatched in Bangalore itself; that the accused No.1 being the Deputy Chief Minister and Chief Minister at the time of this land deal has evidently influenced the Government officials from his residence and office at Bangalore and the funds for the transaction has also flown from Bangalore; that accused :8: No.2 has his residence and office, Dhavalagiri Properties Private Ltd., in Bangalore which is the ultimate beneficiary in this deal, of which he is the director along with his other family members; that accused 3 to 7 also reside and have their offices in Bangalore, as such the Court at Bangalore has territorial jurisdiction to entertain the complaint.
4. The learned Special Judge before whom the complaint was presented took cognizance of the aforesaid offences and after recording sworn statement of the complainant, in terms of Section 202 of Cr.P.C. postponed issue of processes and directed an enquiry to be held by Lokayukta police who after enquiry submitted repot. Thereafter, by the order impugned in the petitions, the learned Special Judge directed issuance of summons to these petitioners and another.
5. Petitioners have presented these petitions seeking to quash the complaint and the further proceedings thereon culminating in issuing of process to them by the Special Court interalia on the ground that :9: the Special Court at Bangalore had no territorial jurisdiction to entertain the complaint since the allegations constituting offence alleged are in relation to immovable properties situated in Shimoga District and therefore, the learned Special Judge at Bangalore could not have taken cognizance of the offences alleged and ordered issue of summons.
6. Upon service of notice, respondent -
complainant appeared through learned counsel.
7. I have heard Sri.Ashok Haranahalli, learned Senior Counsel and Sri.Sathish Doddamani for the petitioners and Sri.Shyam Sundar, learned counsel for respondent - complainant.
8. Though several grounds are urged in the petitions in support of the prayer, the principal contention urged before this Court during the course of argument is with regard to want of territorial jurisdiction on the part of the Special Court at Bangalore.
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9. The learned counsel for the respondent contended that since the conspiracy was hatched in Bangalore, the Special Court at Bangalore has jurisdiction to entertain the complaint.
10. In the light of the above, the point that arise for consideration is whether the Special Court at Bangalore has territorial jurisdiction to entertain the complaint. If so whether the proceedings taken thereon is in accordance with law.
11. As noticed supra, the offences alleged are in relation to certain immovable properties situated in Shimoga District. The sale deeds executed in favour of accused 3 to 6 and subsequently in favour of Dhavalagiri Property Developers Private Limited have been registered in the office of jurisdictional sub- registrar in Shimoga District. The conversion order permitting conversion of agricultural land to non- agricultural industrial purpose has been passed by the Deputy Commissioner of Shimoga District. The alleged encroachment of forest land was in respect of the land : 11 : situated in Shimoga District. No part of the property in relation to which the offences are alleged situate within the jurisdiction of the Special Court at Bangalore.
12. Of course, it is alleged in the complaint that the entire act was in furtherance of conspiracy hatched by accused 1 to 7 in Bangalore. Thus, according to the complainant, since the conspiracy was hatched in Bangalore, the Special Court at Bangalore has jurisdiction to entertain the complaint. As per Section 177 of Cr.P.C. every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed. As per sub-Section (4) of Section 181 of Cr.P.C., any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of property which is the subject of the offence was received or retained or was required to be retained or accounted for, by the accused persons. However, Section 4 of Prevention of Corruption Act which deals with cases triable by Special Judges has a non-abstante clause. It excludes application of : 12 : provisions of Cr.P.C. regarding territorial jurisdiction of the Court. According to sub-Section (1) notwithstanding anything contained in the Code of Criminal Procedure, or any other law for the time being in force, the offences specified in sub-Section (1) of Section 3 shall be tried by Special Judges only. Under sub-Section (1) of Section 3, the Central Government or the State Government is empowered to appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification, to try any offences under the Act and any conspiracy to commit or any attempt to commit or any abatement of any of the offences under the Act. As per sub-Section (2) of Section 4, every offence specified in sub-Section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed or as the case may be, by the Special Judge appointed for the case, or where there are more than one Special Judges for such area, by such one of them as may be specified in that behalf by the Central Government. Thus, reading of the afore noted : 13 : provisions of Section 3(1), 4(1) & (2) of Prevention of Corruption Act it is clear that even where conspiracy to commit any offence under the Prevention of Corruption Act is alleged, only the Special Judge appointed for the area where the offence under the Prevention of Corruption Act alleged to have been committed alone has territorial jurisdiction to try such case.
The Apex Court in the case of CBI, AHD, PATNA VS. BRAJ BHUSHAN PRASAD AND OTHERS REPORTED IN (2001) 9 SCC 432, in paragraph 39, considering the distinction between Section 181(4) of the Code of Criminal Procedure and provision of Section 4(2) of the Prevention of Corruption Act has observed thus:
"39. Now, observe the distinction between Section 181(4) of the Code and Section 4(2) of the PC Act. When the former provision envisaged at least four courts having jurisdiction to try a case involving misappropriation the latter provision of the PC Act has restricted it to one court i.e. the Court of the Special Judge for the area : 14 : "within which the offence was committed".
No other court is envisaged for trial of that offence. We pointed out above that when the charge contains the offence or offences punishable under the PC Act as well as the offence of conspiracy to commit or attempt to commit or any abetment of any such offence, the court within whose local jurisdiction the main offence was committed alone has jurisdiction."
"underlining is by me"
13. Ultimately in para 42, their Lordships have concluded as under:-
"42. Thus, if the PC Act has stipulated any place for trial of the offence under that Act the provisions of the Code would stand displaced to that extent in regard to the place of trial. We have, therefore, no doubt that when the offence is under Section 13(1)(c) or Section 13(1)(d) of the PC Act the sole determinative factor regarding the court having jurisdiction is the place where the offence was committed.": 15 :
14. Their Lordships in para 45 have observed thus:
"45. The said decision relied on by both sides would thus support the proposition that the place of jurisdiction would be determinative by reference to the place where the main offence was committed. The fact that other allied acts were committed at different places would be hardly sufficient to change the venue of the trial to such other places."
15. In V.K.PURI VS. CENTRAL BUREAU OF INVESTIGATION REPORTED IN (2007) 7 SCC 91, the Apex Court while considering the question of territorial jurisdiction of the Special Court in respect of the offence under Section 13(1)(e) of Prevention of Corruption Act, though has held that any one of the Special Courts in whose jurisdiction accused public servant worked during the check period would have territorial jurisdiction to try the offence under Section 13(1)(e) of Prevention of Corruption Act, has noticed the distinction : 16 : between Section 13(1)(c) and (d) on the one hand and Section 13(1)(e) on the other hand, thus in Para 12:
"12. A distinction exists between a case filed under Section 13(1)(c) and 13(1)(d) of the 1988 Act, on the one hand, and Section 13(1)(e) thereof, on the other.
Therefore, the judgment of the Apex Court in V.K.Puri's case relied on by the learned counsel for the respondent is not applicable to the facts of the case. On the other hand, the law laid down by the Apex Court in CBI, AHD, Patna vs. Braj Bhushan Prasad's case referred to supra is applicable to the facts of the case since in the case on hand the offences alleged are the one referred under Section 13(1)(c) and (d) of the PC Act read with Section 120(B) and 420 of IPC.
16. As noticed supra, since the properties in relation to which offences alleged are situated in Shimoga District, the Special Court constituted under the Prevention of Corruption Act for Shimoga District alone has the jurisdiction to entertain any such complaint. The Special Court at Bangalore has no : 17 : territorial jurisdiction to entertain the complaint though it is alleged in the complaint that the conspiracy for committing the main offences under Section 13(1)(c) and (d) of the Prevention of Corruption Act has been hatched in Bangalore. The offence of conspiracy alleged is the ancillary offence to the main offence as such the Special Court at Bangalore has no territorial jurisdiction to entertain the complaint. The learned Special Judge without applying the aforesaid principle of law laid down by the Apex Court, seems to have entertained the complaint and has proceeded to take cognizance of the offence and has directed issue of summons to the petitioners. Thus, there is total lack of application of mind to this aspect of the matter by the learned Special Judge. The order taking cognizance and directing issuance of summons by the Special Court at Bangalore which has no territorial jurisdiction to entertain the complaint is wholly without jurisdiction. Therefore, they cannot be sustained.
17. At this stage, learned counsel for the respondent submitted that in view of this finding : 18 : regarding territorial jurisdiction of the Court, the complaint be ordered to be transferred to the jurisdictional Court at Shimoga District for further action.
18. In view of the above discussions, petitions are allowed. The order dated 28.05.2012 taking cognizance of the offences alleged on the private complaint in PCR No.29/2012 and the order dated 04.09.2012 directing issuance of summons to the persons named as accused in the private complaint in P.C.R.No.29/2012 for the offences under Sections 13(1)(c), 13(1)(d) punishable under Section 13(2) of Prevention of Corruption Act read with Sections 420 and 120(b) of IPC are hereby set aside. It is declared that the Special Court at Bangalore has no territorial jurisdiction to entertain the complaint lodged by the respondent.
19. The Special Court is directed to return the complaint to the complainant in terms of Section 201 of Cr.P.C., for presentation before the jurisdictional court. : 19 :
All other grounds urged in the petition are kept open.
Sd/-
JUDGE Prs*