Karnataka High Court
Mr. K M Prasad vs State Of Karnataka By on 16 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.8836 OF 2023
BETWEEN:
MR. K. M. PRASAD
S/O LATE KARIGOWDA,
AGED ABOUT 63 YEARS,
FORMER LECTURER,
ADMINISTRATION TRAINING CENTRE,
MYSORE - 570 004.
R/O KARIGOWDA COLONY, B.M.ROAD,
HASSAN KARNATAKA - 57320.
...PETITIONER
(BY SRI. PARAMESHWAR N. HEGDE, ADVOCATE)
AND:
STATE OF KARNATAKA BY
HASSAN LOKAYUKTHA POLICE,
REPRESENTED THROUGH ITS
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 01.
...RESPONDENT
(BY SRI. VENKATESH S. ARABATTI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
23.08.2023 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, HASSAN IN
SPL.C.NO.7/2015 ON THE APPLICATION FILED BY THE
PETITIONER U/S 227 OF CR.P.C. AND CONSEQUENTLY
DISCHARGE THE PETITIONER FROM THE ALLEGED OFFENCE
2
P/U/S 13(1)(e) R/W 13(2) OF PREVENTION OF
CORRUPTION ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.03.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
RESERVED FOR ORDERS ON : 05.03.2024
PRONOUNCED ON : 16.04.2024
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C., for quashing the Criminal proceedings in Spl. C.C. No.7/2015 arising out of crime No.16/2011 registered by Lokayuktha police, Hassan, and to discharge the accused by setting aside the order dated 23.08.2023 passed by the Principal District and Sessions Judge and Special Judge, Hassan, on the application filed under Section 227 of Cr.P.C.
2. Heard the arguments of learned counsel for the petitioner and learned counsel for the respondent- Lokayuktha.
3
3. The case of the petitioner is that the respondent Lokayuktha Hassan registered the FIR for the offences punishable under Section 13(1)(e) read with Section 13(2) of the P.C. Act. (hereinafter referred to as 'P.C. Act') alleging that as per the source report dated 8.12.2011 prepared by one H.L.Shivabasappa, Dy.S.P, reported to the Superintendent of Police. The Superintendent of Police authorised H.L.Shivabasappa, Dy.S.P to register the FIR in Crime No.16/2011. The matter was investigated by CW1. Subsequently, CW.114, filed the charge sheet. It was alleged by the respondent police that the petitioner, while working as public servant during the check period, is having assets of Rs.29,26,82,409/-, expenditure Rs.7,22,03,470/- and expenditure was assessed at Rs.36,84,85,879/-. The income was Rs.21,54,926.17- and disproportionate assets was Rs.14,93,93,746/- which is consisting of 69.32%. After registering the FIR and filing charge sheet, the Investigating Officer calculated that the disproportion asset was Rs.10,43,21,765/- which amounts to 58.57%. The petitioner was prosecuted before the Special Court, and he 4 filed an application for discharge under Section 227 of Cr.P.C., which came to be dismissed. Hence, the petitioner is before this Court.
4. Learned counsel for the petitioner has contended mainly on the ground, that there is no authorisation for the Investigating Officer to investigate the matter as per Section 17 of P.C. Act. He further contended that the final report submitted for sanction against the accused for 69.32% and the sanctioning authority increased it by 11% and everything has been changed. He has further contended, one Raghavendra Rao filed a complaint before the Lokayuktha and enquiry was conducted by the technical wing and the allegation was not established and the department exonerated the charges against the petitioner. The learned counsel further contended that the complainant himself is the Investigation Officer. The Hon'ble Supreme Court has stated when a case is based upon the Reverse Burden, the complainant cannot Bench an Investigating Officer. It is further contended the respondent admits that 5 there is no authorization under Section 17 of P.C. Act. The complainant CW1 was initially the Investigating Officer and he was authorised to investigate the matter. Subsequently, the investigation was concluded and CW.114 filed the charge sheet without any power and the police are not having automatic power to investigate the matter.
5. In support of his contentions, the learned counsel for the petitioner has relied upon the following judgments of the Hon'ble Supreme Court :
i. State, Inspector of Police Vishakhapatnam Vs. Surya Sankaram Karri - (2006) 7 SCC 172 ii. Mukesh Singh Vs. State (Narcotic Branch of Delhi) - (2020) 10 SCC 120 iii. Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation - (2018) 16 SCC 299 iv. Mohan Lal Vs. State of Punjab - (2018) 17 SCC 627 v. State of Haryana and Others vs. Bhajanlal and Others - 1992 Supp. (1) SCC 335 6
6. Per contra, learned counsel for respondent-State has objected the petition by filing the statement of objection. He has contended that the petitioner has challenged the order of dismissal of the application under Section 227 of Cr.P.C. Therefore, revision lies under Section 397 of Cr.P.C., but not the petition under Section 482 of Cr.P.C. The learned counsel further contended that the Special Judge has passed the order considering the grounds urged by the accused. The accused was the Joint Director of Administration Training Centre, Mysore. As per the source report dated 08.12.2011, for the check period from 01.08.1984 to 08.12.2011, the assets of the petitioner- accused was Rs.2.57 lakhs, the expenditure was Rs.12 lakhs, totalling Rs.2.69 crores. The income of the petitioner- accused was Rs.78,25,861/- and the disproportionate asset was Rs.1,90,74,139/- and the percentage of disproportion was calculated at 243.73%. Based upon the source report, the Superintendent of Police, Lokayuktha, passed an order under Section 17 of P.C. Act, on 20.12.2011, to register the case and to investigate the matter for the offences 7 punishable under Section 13(1)(e) read with Section 13(2) of the P.C. Act. Accordingly, the police conducted investigation and filed charge sheet.
7. It is further contended by the learned counsel for the respondent that after preparing the charge sheet, the final report was forwarded to the Commissioner of Department of Social Welfare, Bengaluru, for obtaining sanction. Thereafter, on 31.10.2023, the investigation officer handed over the charge to C.W.114. The sanction was received on 27.09.2014 and in turn, C.W.114 filed the charge sheet. The final report in the form of charge sheet was submitted to the Special Judge by C.W.114. The charge sheet was comprising of 114 witnesses. The investigation officer assessed the assets and expenditure of the petitioner-accused at Rs.36,48,85,879/-, the income at Rs.21,54,92,134/-, the disproportionate assets at Rs.14,93,93,746/- and the percentage of disproportion at 69.32%. The learned counsel further contended that the application of the petitioner under Section 227 of Cr.P.C. 8 has been dismissed and the said order cannot be challenged under Section 482 of Cr.P.C. The order of the Superintendent of Police under Section 17 of the P.C. Act, is in accordance with law and there was fair investigation done after filing of the FIR.
8. The contention of the learned counsel for the petitioner is that the judgments of the Hon'ble Supreme Court in the case of Mohan Lal, cited supra, and VARINDER KUMAR VS. STATE OF HIMACHAL PRADESH reported in 2019 SCC Online SC 170, were referred to the Larger Bench. The Full Bench of the Hon'ble Supreme Court held that in view of the reference to the Larger Bench, the cases, trials and Criminal prosecutions shall continue to be governed by the individual facts of the case.
9. It is the contention of the learned counsel for the respondent that, as per the order of the Superintendent of Police, one H.L. Shivabasappa, Depty Superintendent of Police, Karnataka Lokayuktha, Hassan (C.W.1) conducted 9 investigation and he has sent the entire report to the competent authority seeking sanction. After the receipt of the sanction order, C.W.114 filed charge sheet. Even if there is any irregularity in the investigation, the trial Court has already taken cognizance, and therefore, the irregularity can be questioned during the trial as per the judgment of the Hon'ble Supreme Court in STATE OF M.P. Vs. SHRI RAM SINGH reported in (2000)5 SCC 88. It is also contended that the sanction order, being different from the final report, cannot be the subject matter of the petition and the said ground was not urged before the trial Court. The sanction order was passed by application of mind. In the case of STATE OF MAHARASHTRA Vs. MAHESH G JAIN reported in (2013)8 SCC 199, the Hon'ble Supreme Court has listed out the requisites of a valid sanction in para 14 of the judgment. It is further contended that the Lokayuktha has closed the complaint lodged by one Raghavendra Rao on 23.05.2008 and the proceeding dated 29.11.2013 was passed under the provisions of the Karnataka Lokayuktha Act, and hence, that cannot be a ground for quashing the 10 Criminal proceedings. The enquiry and the proceedings under the Karnataka Lokayuktha Act is different from the Criminal case. Therefore, prayed for dismissing the petition. In support of his contentions, the learned counsel for the respondent has relied upon the following judgments :
i. State of Telangana vs. Mangipet Alias Mangipet Sarveshwar Reddy - (2019) 19 SCC 87 ii. Varinder Kumar Vs. State of Himachal Pradesh - AIR Online 2019 SC 570 iii. H.N. Rishbud and Another Vs. State of Delhi - AIR 1955 SC 196 iv. State of M.P. and Others Vs. Ram Singh -
(2000) 5 SCC 88
10. Having heard the arguments of learned counsel for the parties, perused the records.
11. The main contention of the respondent is that the present petition is not maintainable as the petitioner has already approached the trial Court for discharge under Section 227 of Cr.P.C., which came to be rejected. Therefore, the petitioner is required to file a revision petition 11 under Section 397 of Cr.P.C., but not the petition under Section 482 of Cr.P.C.
12. In this regard, it is not in dispute that the petitioner has already approached the trial Court under Section 227 of Cr.P.C. for discharge, which came to be dismissed and the present petition came to be filed under Section 482 of Cr.P.C. It is pertinent to note that the petitioner has directly approached this Court against taking cognizance of the offence punishable under Section 482 of Cr.P.C. This Court can exercise power under Section 482 of Cr.P.C. Of course, against the rejection of the discharge application under Section 227 of Cr.P.C., the petitioner is also having the right of filing a revision under Section 397 of Cr.P.C. which is an alternative remedy available to the accused. It is well settled by the Hon'ble Supreme Court that the order on discharge application cannot be considered as an interlocutory order. If an order is passed by the Court on the interlocutory application filed by the parties, the revision cannot be filed against the said order on 12 interlocutory application, in view of bar under Section 397(2) of Cr.P.C., but, the order on discharge application is neither an order on interlocutory application nor final order, which is intermediate order. That apart, the discharge application filed by the petitioner is nothing but the interlocutory application wherein the order was passed by the trial Court. Therefore, the petitioner can also maintain an alternative remedy available to him under Section 482 of Cr.P.C. Therefore, when an alternative remedy is available under Section 397 of Cr.P.C., there is no bar for the petitioner-accused to invoke the High Court under Section 482 of Cr.P.C., since the impugned order is passed by the Special Judge, who is a District Judge. Therefore, the revision as well as the petition under Section 482 of Cr.P.C. lie before the High Court. The Co-ordinate Bench of this Court in the case of MAREPPA AND OTHERS VS.
PUSHPANJALI in Criminal Petition No.200009/2021 dated 10.12.2021, by relying upon the judgment of the Hon'ble Supreme Court in the case of DHARIWAL TOBACO PRODUCTS LTD. AND OTHERS Vs. SATE OF 13 MAHARASHTRA AND ANOTHER reported in AIR 2009 SC 1032, has held that even when the alternative remedy under Section 397 of Cr.P.C. is available, still the parties can approach under Section 482 of Cr.P.C. Therefore, the contention of the learned counsel for the respondent that the petition is not maintainable under Section 482 of Cr.P.C., holds no water.
13. Now, coming to the main contention raised by the petitioner that, one Raghavendra Rao, an Advocate filed a complaint before the Lokayuktha and the Lokayuktha also conducted an enquiry and closed the case as there was no prima facie case established for amazing disproportionate assets by the petitioner. It is contended that the complaint was filed by a private person, but the enquiry was done by the same Lokayuktha authority and exonerated the petitioner from the charges. The further contention of the petitioner is that there was no authorisation by the Superintendent of Police under Section 17 of P.C. Act. When the investigation officer sent report or sanction of 14 authority under Section 19 of P.C. Act, the sanctioning authority changed the report of the investigation officer and arrived at some other conclusion by increasing the disproportionate asset for 11% more than the report forwarded by the investigation officer. The learned counsel also contended that the order passed under Section 17 of the P.C. Act by the Superintendent of Police is non application of mind. The Superintendent of Police has not received FIR from the Lokayuktha police along with the source report, but he ordered for registering FIR and to investigate the matter, which is erroneous and non application of mind as per paragraphs 11.6, 11.7 and 11.8 of the judgment of the Hon'ble Supreme Court in Bhajanlal case, cited supra.
14. Now coming to the contention of the learned counsel for the petitioner that there is no authorisation by the Superintendent of Police under proviso-II to Section 17 of P.C. Act authorising the inspector to investigate the matter, as per Section 17(c) of the P.C. Act, the State 15 Government is required to pass an order, a Superintendent of Police or a police officer equivalent to the rank of the Deputy Superintendent of Police shall investigate the offence under the P.C. Act. The proviso-I says the State Government shall make notification by general or special order directing the rank of police inspector for investigating the matter for any such offence under the P.C. Act. Whereas, the proviso-II specifically says the offence punishable under Section 13(1) of the P.C. Act shall not be investigated below the rank of the Deputy Superintendent of Police except on the order passed by the Superintendent of Police. The learned counsel has contended that, in this case, there is no order passed by the Superintendent of Police directing the police inspector either C.W.1 or C.W.114 for investigating the matter. The learned counsel for the respondent has produced the order of the Deputy Superintendent of Police and handing over the charge by the C.W.1-H.L. Shivabasappa, Dy.S.P., on 24.10.2013 to C.W.114-Hussain, Dy.S.P., for investigating the matter and 16 therefore, the investigation was conducted by the Dy.S.P. and charge sheet was filed.
15. The learned counsel for the petitioner has contended that, after receipt of the source report, the police officer did not register the FIR, but the source report was forwarded to the Superintendent of Police. In turn, the Superintendent of Police directed C.W.1 to register FIR and to investigate the matter. Therefore, it is contended that there is no preliminary enquiry conducted by the police before registering the FIR. After registering the FIR, the source report, the preliminary enquiry report and the FIR shall be forwarded to the Superintendent of Police. Then the Superintendent of Police is required to apply his mind and pass the order under proviso II of Section 17 of the P.C. Act. But, here, in this case, the Superintendent of Police, without looking to the FIR and the preliminary enquiry report, ordered for investigation under Section 17 of the P.C. Act. Therefore, the very investigation ordered by ordered under 17 ordered under Section 17 of the P.C. Act without registration of the FIR, is not sustainable under the law. In support of his contention, the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in Bhajanlal's case, cited supra, wherein the Hon'ble Supreme Court has held that the order passed under Section 17 of the P.C. Act directing the police to register and investigate the matter, is non application of mind and proceedings is liable to be quashed. The Hon'ble Supreme Court in the Bhajanlal's case, cited supra, at paragraphs 116 and 119, has held as under:
116. According to Section 5-A, notwithstanding anything contained in the Code, no police officer below the rank specified in clauses (a) to (d) of Section 5-A(1), shall investigate any offence punishable under Section 161, 165 or 165-A of the IPC or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest there for without a warrant. There are two provisos to that section. As per the first proviso, if a police officer 18 not below the rank of an Inspector of Police is authorised by the State Government, either by general or special order, he may investigate any such offence without the order of a Magistrate or make arrest there for without a warrant.
According to the second proviso, an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
119. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud and Inder Singh v. State of Delhi43; (2) Major E.G. Barsay v. State of Bombay47; (3) Munna Lal v. State of Uttar Pradesh48; (4) S.N. Bose v. State of Bihar49; (5) 19 Muni Lal v. Delhi Administrations50 and (6) Khandu Sonu Dhobi v. State of Maharashtra51. However, in Rishbud case43 and Muni Lal cases50, it has been ruled that if any breach of the said mandatory proviso relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation.
16. The Co-ordinate Bench of this Court in the case of BALAKRISHNA H.N. Vs. STATE BY ACB, MYSURU in W.P. No.15886/2022 (GM-RES), at paragraph No.12, has held as under:
"12. If the reasons rendered by Apex Court are noticed, two factors would emerge one, that the prosecution is required to draw up source report after conducting some sort of a preliminary enquiry to know the assets of the Government servant and twe, after the source information report is placed before the Superior Officer- Superintendent of Police, he has to verify as to whether a crime should be registered or 20 otherwise. If these principles that would emerge from the judgment of the Apex Court are considered qua the facts obtaining in the case at hand, the registration of the crime would fall foul of the principles laid down by the Apex Court and that of this Court in the afore-quoted judgment. Therefore, on this short ground that the source information report disclosed blatant non-
application of mind and non-conduct of preliminary inquiry as is necessary in law only in cases concerning disproportionate assets.
17. Another Co-ordinate Bench of this Court in the case of NAVANEETH MOHAN N. Vs. SHO, ACB, BENGALURU AND ANOTHER in W.P. No. 43817/2018 (GM-RES) dated 21.04.2021, at paragraph Nos.15 and 16 has held as under:
15. The source report which is part of Annexure-A Submitted before Superintendent of Police, ACB, Bengaluru, the note of Superintendent of Police, ACB do not indicate that along with the said report any material was placed before him to grant permission to register the FIR and 21 investigate the matter. In the order of Superintendent Police absolutely, there is no reference to submission of any documents along with the source report. In one stroke the Superintendent of Police says that he is convinced that it is a fit case to register the FIR and investigate the case.
He does not even say that any preliminary enquiry was conducted prior to placing source report before him. Therefore, there is clear violation of the direction issued by the Hon'ble Supreme Court in Lalitha Kumari's case in registering the FIR.
16. In the judgment of the Hon'ble Supre me Court in Charansingh Vs. State of Maharashtra and others in Crl.A. No.363/2021 dated 24.03.2021 relied upon by the learned Spl. Public Prosecutor himself, in para 12 it was held that before registering the FIR a preliminary enquiry shall be conducted either confidential or open enquiry."
18. Following the above said two cases, this Court has also quashed the Criminal proceedings in the case of 22 LOKAYUKHTA TOWN POLICE STATION in Criminal Petition No.13460/2023 dated 04.03.2024. The above said principles laid down by the Co-ordinate Bench and this Court is squarely applicable to the case on hand, where the Superintendent of Police has passed an order under Section 17 of the P.C. Act for registering the FIR and to investigate the matter. Therefore, on this ground and on the principles laid down by the Hon'ble Supreme Court in the case of Bhajanlal, cited supra, the proceedings is not sustainable under the law.
19. Another contention taken by the learned counsel for the petitioner is that C.W.1 himself was the complainant and he has conducted investigation and prepared the charge sheet, but the charge sheet was filed by C.W.114. There were two opinions by the two investigation officers where C.W.114 has investigated the matter and prepared the final report and forwarded to the State seeking sanction stating that the assets of the petitioner was Rs.21,54,34,926.17 and expenditure was Rs.6,69,78,817/- totally 23 Rs.28,24,13,743.17 and the income was Rs.18,15,62,189.13 and disproportionate assets was Rs.10,43,21,745.04 holding the percentage of disproportion at 58.57%. It is contended that the State government accorded sanction stating that the asset of the accused was Rs.29,26,82,409/-, the expenditure was Rs.7,22,03,470/- totalling Rs.36,84,85,879/- and income was Rs.21,54,92,134/- and disproportionate asset was 69.32%. There was increase of 10-11% disproportion between the report of C.W.114 and report of C.W.1. Therefore, it is contended that the State Government has not applied its mind while granting sanction. There is no proper order for analysing the disproportionate asset. Therefore, the very complainant himself investigated the matter and filed the final report which prejudiced the case of the accused. Therefore, prayed for quashing the criminal proceeding on that ground.
20. On the other hand, the learned counsel for the respondent has contended that the investigation was done 24
20. On the other hand, the learned counsel for the respondent has contended that the investigation was done by C.W.1 and in view of retirement of the C.W.1, C.W.114 further investigated the matter, and he sent the report for obtaining the sanction. But the sanctioning authorities considered the final report prepared by C.W.1 and accorded sanction. Therefore, the case of the accused will not be prejudiced. It is also contended that there may be some wrong or typographical error in mentioning the date of the final report as 05.02.2014 which was prepared by C.W.114, but it will not affect the case of the petitioner and the said ground can be urged during the trial. On perusal of the sanction order produced herein, it reveals that the sanctioning authority verified the final report dated 05.02.2014 which is nothing but the final report produced by the petitioner accused. The said report was prepared by C.W.114, who took further investigation from C.W.1 and sent the final report for sanction, whereas the sanctioning authority accorded the sanction based upon the investigation done by C.W.1. As per the document at 25 Annexure-R2 produced by respondent No.2, C.W.1 retired from the service and handed over investigation to C.W.114 on 24.10.2013, and as per this record, the charge was handed over to C.W.114 on 31.10.2013. As per the order of the Dy.S.P. on 31.10.2013, the charge transfer certificate was also issued and signed by C.W.1 and C.W.114 on 31.10.2013. But the charge sheet reveals that the charge sheet was finalised on 22.12.2014. That means, the charge sheet and opinion was prepared by C.W.114 based upon the investigation done by C.W.1, whereas the sanction was granted by the authority not based upon the report of C.W.114 which was 58.51% of the disproportionate asset. The sanction was accorded for 69.32%, where there is no report prepared by C.W.1. On the other hand, this opinion was prepared by C.W.114. When C.W.1 retired from service on 31.10.2013 itself, the question of preparing the charge sheet by him on 22.12.2014 does not arise and he was not in service. On the other hand, C.W.114 took up further investigation and he has also done further investigation and sent the final opinion on 05.02.2014. Based upon his final 26 report, the sanction was not accorded, but the sanctioning authorities have not given any reasons for discarding the opinion of C.W.114 and coming to the separate conclusion for opinion. It appears that the investigation agency changed the version in the midst in order to match the sanctioning order and they filed charge sheet stating that the charge sheet was prepared by C.W.1 but not C.W.114. Therefore, it clearly reveals that the sanction order passed by the competent authority is not in accordance with law and is non application of mind which goes to root of the case and it cannot be considered as irregularity, and it is nothing but creation of the charge sheet itself much prejudiced the case of the accused.
21. The next ground of the learned counsel for the petitioner is that, according to the prosecution, C.W.1 himself registered FIR and he himself conducted investigation and he was said to be prepared the final report and there was manipulation in the document and the non application of mind by the sanctioning authority. Therefore, 27 the informant cannot himself investigate the matter and there will be bias and prejudice would cause to the case of the petitioner. In support of his case, the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Mukesh Singh, cited supra, in a NDPS case, where the Hon'ble Supreme Court has held that investigation officer who himself is an informant/complainant, is not barred under the NDPS or Cr.P.C. and that cannot be said that the investigation is vitiated on the ground of bias or like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case and the matter is to be decided on the case to case basis, without any universal generalisation having required to the case of bias and prejudice against the accused. Keeping the principles of the Hon'ble Supreme Court in mind and looking to the grounds urged by the learned counsel and the documents produced by him, it reveals that C.W.1 himself is the complainant and himself investigated the matter. Of course, before filing the charge sheet, he was retired, but the charge sheet prepared 28 Whether C.W.1 bias himself against the accused or not, is to be considered here.
22. Learned counsel for the petitioner has contended that one Raghavendra Rao already filed a complaint against the petitioner for amassing the assets disproportionate to the known source of income. Based upon the said complaint of Raghavendra, the Lokayuktha ordered for enquiry by sending the records to the technical team, who submitted report on 14.11.2013. Finally, after considering the entire records and the allegation, they submitted the report stating that the allegation made against the petitioner was not proved. There was 14 charges alleged against the petitioner by Raghavendra Rao. The Lokayuktha took the enquiry under Section 7 of the Lokayuktha Act and investigated the matter as per Section 9 of the Lokayuktha Act and done preliminary investigation, which reveals that there was no offence committed by the accused and the charges were not proved as per the technical wing of the Lokayuktha report dated 14.11.2013.
29
proved as per the technical wing of the Lokayuktha report dated 14.11.2013.
23. When the preliminary investigation itself reveals that there was no offence committed by the accused and the charges were not proved, based upon the very same allegation, registering the FIR and filing the charge sheet by the same person C.W.1 would definitely prejudice the case of the accused. There was bias towards accused when the complaint of the Raghavendra Rao filed in the year 2008 itself and the matter was under investigation and enquiry was conducted by the very Lokayuktha itself and finally concluded on 29.11.2013 by exonerating the petitioner from the charges. For the same allegation, the Lokayuktha registered suo moto FIR in the year 2011 and filed charge sheet. As per the judgment of the Hon'ble Supreme Court in the case of LALITA KUMARI Vs. GOVERNMENT OF UTTAR PRADESH AND OTHERS reported in (2014) 2 SCC 1, when the cognizable offence is made out, the police 30 investigate the matter and submit the final report. There must be source report prepared by the police prior to registering the FIR and thereafter, they shall conduct preliminary enquiry as per the guidelines of Lalita Kumari case, cited supra. They registered FIR and subsequently, obtained permission under Section 17 of the P.C. Act and investigated the matter. C.W.1 suo moto registered FIR and even before the order of the Superintendent of police, he started to investigate the matter. Authorisation was not accorded to him to investigate the matter under Section 17 of the P.C. Act. There is no source report prepared by him prior to registering the FIR and coming to conclusion for registering the FIR. Even other wise, the preliminary enquiry report of the technical wing of the Lokayuktha itself has stated that there were no charges proved against the accused. Such being the case, until completion of the preliminary investigation, C.W.1 ought not have registered FIR, but the FIR was registered prior to conclusion of preliminary investigation. The preliminary investigation 31 FIR, but the FIR was registered prior to conclusion of preliminary investigation. The preliminary investigation report was submitted in November 2013, whereas the FIR was registered on 20.11.2011, and the charge sheet was filed subsequent to the preliminary investigation report of the Lokayuktha where the Lokayuktha report exonerated the charges against the accused and the very same Lokayuktha police filed the charge sheet against the accused. Therefore, once the preliminary investigation reveals that there was no offence committed and the charges were unproved, the question of filing the charge sheet on the same allegation does not arise. The Hon'ble Supreme Court in the similar situation in case of ASHOO SURENDRANATH TEWARI Vs. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI AND ANOTHER reported in (2020) 9 SCC 636, after considering the case in RADHESHYAM KEJRIWAL Vs. STATE OF WEST BENGAL AND ANOTHER, reported in (2011) 3 SCC 581, at paragraph 13, has held as under: 32
13. It finally concluded: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para 39) "39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
24. In view of the aforesaid judgment of the Hon'ble Supreme Court, when the very Lokayuktha enquiry team in preliminary investigation exonerated the charges against the accused, and on the same set of identical facts, registering the FIR and filing the charge sheet, is not sustainable. On this ground, I am of the view that C.W.1 purposefully registered the FIR and filed charge sheet by ignoring their 33 proceedings against the petitioner, is nothing but abuse of process of law and liable to be quashed.
25. Accordingly, the petition is allowed. The criminal proceedings against the petitioner-accused in Spl. C.C. No.7/2015 arising out of Crime No.16/2011 registered by Lokayuktha police, Hassan, pending on the file of Principal District and Sessions Judge and Special Judge, Hassan, is hereby quashed.
Sd/-
JUDGE AKV/CS CT:SK