Karnataka High Court
The State Of Karnataka By vs Sri T Hanumanthaiah on 5 December, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.647 OF 2012
BETWEEN:
The State of Karnataka by
The Police Karnataka Lokayuktha
Bangalore Rural Police Station,
Bangalore.560001.
..Petitioner
(By Sri. B.S. Prasad, Special Public Prosecutor)
AND:
Sri.T. Hanumanthaiah,
S/o. Late: Thimmaiah,
Aged about 53 years,
Village Accountant,
Kodigehalli (Magadi Road),
Bangalore North Taluk.560024.
.. Respondent
(By Sri. P.N. Hegde, Advocate)
****
This Criminal Revision Petition is filed under Section 397 and
401 of the Code of Criminal Procedure, 1973, praying to call for the
records of the Special Court, Bangalore Rural Dist. in Special
C.C.No.3/2010 and after hearing the petitioner/State and the
Accused/Respondent, set aside the order of discharge dated
24-01-2012 passed by the learned Special Judge, Bangalore Rural
Crl.R.P.No.647/2012
2
District in Special Case No.3/2010 of the offence punishable under
Sections 13 (1)(e) r/w. Section 13 (2) of the Prevention of
Corruption Act, 1988, further direct the Special Court to frame the
charges and to proceed with the trial and to pass such other order
as deemed fit in the interest of justice and equity.
This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
03-11-2022, coming on for pronouncement of orders this day, the
Court made the following:
ORDER
The complainant - State by Karnataka Lokayukta, Bangalore Rural Police Station, has filed this revision petition, challenging the order dated 24-01-2012, passed by the Court of the Principal Sessions Judge, Bangalore Rural District, Bangalore, (hereinafter for brevity referred to as "the Special Court"), in Special Case No.3/2010, allowing the application filed by the present respondent as an accused, under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), read with Sections 17 and 19 of the Prevention of Corruption Act, 1988 (hereinafter for brevity referred to as "the P.C. Act of 1988"), for the offence Crl.R.P.No.647/2012 3 punishable under Section 13(1)(e) read with Section 13 (2) of the P.C. Act of 1988.
2. The summary of the case of the complainant in the charge sheet filed before the Special Court was that, the present respondent, a public servant, working as a Village Accountant at Kodigehalli Grama Panchayat, Bangalore North Taluk, Bangalore Rural District, during the check period from 03-09-1979 to 24-06-2006 was found to have had a total income of `15,80,116/- from his all known sources of income and the expenditure was assessed at `6,60,194/- and that the value of his assets was arrived at a sum of `36,44,490/- which was stated to be 230.64% in excess than the known sources of his income.
3. The respondent (accused) is represented by his learned counsel.
4. The Special Court's records were called for and the same are placed before this Court.
Crl.R.P.No.647/20124
5. Learned Special Public Prosecutor for the revision petitioner - Lokayukta Police and the learned counsel for respondent (accused) are physically appearing in the Court.
6. Heard the arguments from both side and perused the materials placed before this Court including the impugned order passed by the Special Court on the application filed by the accused under Section 227 of the Cr.P.C. read with Sections 17 and 19 of the P.C. Act of 1988.
7. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
Whether the impugned order passed by the Special Court on the application filed by the accused under Section 227 of the Code of Criminal Procedure, 1973, read with Sections 17 and 19 of the Prevention of Corruption Act, 1988, is perverse and erroneous, warranting interference at the hands of this Court?Crl.R.P.No.647/2012 5
8. The learned Special Public Prosecutor for the revision petitioner - Lokayukta Police, in his argument submitted that, at the stage of framing of the charge, the Court is not expected to conduct a mini trial, evaluate the merits of the case and appreciate the documents placed before it in its entirety.
Learned Special Public Prosecutor further submitted that, the alleged income of the wife of a sum of `30,00,000/- was shown to have been credited by the wife's account as a loan which is few days prior to the date of raid on the house of the respondent (accused). The alleged percentage of profit in the said investment, though in the form of a loan, was very marginal, which the Special Court failed to notice.
Learned Special Public Prosecutor also submitted that, several of the aspects considered by the Special Court like the value of the alleged building asset of the respondent (accused) and of the alleged agricultural income were all the subject Crl.R.P.No.647/2012 6 matter of trial. However, without considering these aspects, the Special Court, in a hasty manner, arrived at a conclusion, which is erroneous. He also submitted that the Special Court also ignored the fact that, all the Police Inspectors, who are authorised to conduct the investigation under the Notification of the State Government of the year 1991, even after assuming that the last Investigating Officer who filed the charge sheet was not specially authorised by the Superintendent of Police, still, it has not resulted in any miscarriage of justice and no prejudice has been caused to the interest of the accused who has been successful in delaying the matter since the year 1992.
9. Per contra, the learned counsel for the respondent (accused) in his argument submitted that, though he would not canvas his argument on the merit, but there are serious technical irregularities committed in the matter, in the investigation, as such, the impugned order passed by the Special Court sustains.
Crl.R.P.No.647/20127
The learned counsel further submitted that, as per the second proviso to Section 17 of the P.C.Act of 1988, there had to be an authorisation to the Police Officer with his name, however, in the instant case, for CW-13 - Dr.S. Prakash, there is no authorisation given by the Superintendent of Police, to conduct the investigation, as such, it is hit by Section 17 of the P.C. Act of 1988.
10. Learned counsels from both side relied upon few judgments in support of their arguments, which would be considered at the appropriate stage.
11. It is not in dispute that, the respondent (accused) joined the services on the date 03-09-1979 in the Revenue Department. He was working as a Village Accountant at Kodigehalli, Bangalore North Taluk, for the period from 13-07-2002 to 24-06-2006. It is alleged that, during the check period, the accused had amassed the wealth in excess at 230.64% than the known sources of his income. The Crl.R.P.No.647/2012 8 complainant - Lokayukta Police have filed voluminous documents as a part of their charge sheet.
12. Learned Special Public Prosecutor for the revision petitioner - Lokayukta Police relied upon a judgment of the Hon'ble Apex Court in the case of State of Tamil Nadu by Ins. of Police, Vigilance and Anti Corruption Vs. N. Suresh Rajan and others reported in 2014 CRI. L.J 1444. In paragraph 20 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 20. xxx xxx xxx xxx True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view Crl.R.P.No.647/2012 9 to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
Therefore, in the instant case, what is required to be seen is, that are there no sufficient ground for proceeding against the accused as contended by the accused (respondent)?
13. According to the accused, though the valuation of the assets appears to be more than the salary income of the accused, however, the Investigating Officer did not consider Crl.R.P.No.647/2012 10 the income of a sum of `30,00,000/- of his wife and his income from agriculture.
14. In order to come to a finding that there are no grounds to proceed against the accused for the alleged offences, the Special Court, inter alia, considered the following aspects:
(i) Firstly, it observed that the wife of the accused claims to have earned an income of `30,00,000/- on the date 04-06-2006 and the same was not taken into consideration by the Investigating Officer.
A perusal of the records including the charge sheet papers would go to show that, there was an alleged income of a sum of `30,00,000/- in favour of the wife of the accused, who is said to be an independent small work civil contractor. Page 413 of the charge sheet papers shows a pass book of a Co-operative Society also in that regard, wherein two entries Crl.R.P.No.647/2012 11 of `15,00,000/- each can be seen, however, it is also shown that the said amount was withdrawn by her within four days of its deposit i.e. on 07-06-2006 showing the balance as zero. Admittedly, the said passbook is of a loan account. Therefore, the said amount may be in the form of a loan, but not admittedly, as a profit earned by the wife of the accused. According to the charge sheet, out of the said sum of `30,00,000/-, the profit amount was only a sum of `2,40,000/- as stated by the wife of the accused in her income tax returns filed after the filing of the FIR, as such, the contention of the learned Special Public Prosecutor that the entire amount of `30,00,000/- should not have been taken as the income of the wife of the accused, needs to be considered.
In Schedule II at page No.499 also (statement No.4), it is shown that after deducting the expenses, the income is far below the amount of `30,00,000/-. Therefore, the observation of the Special Court that the said amount of `30,00,000/- Crl.R.P.No.647/2012 12 ought to have been taken into consideration as income of the accused, is not a convincing reason.
(ii) Secondly, the Special Court also observed that the agricultural income of `7,32,026/- was also not taken into account by the Investigating Officer while assessing the known sources of the income of the accused.
No doubt, the said amount is shown in the Schedule as the agricultural income, but admittedly, neither the Annual Property Returns (APR) said to have been filed by the accused with his employer nor the Income-tax returns of the accused whispers anything about the said alleged agricultural income. Therefore, without a full-fledged trial, the said alleged income of `7,32,026/- cannot be accepted as the agricultural income of the accused (respondent) during the check period.
iii) Thirdly, the contention of the accused (respondent) that, an income of `20,000/- was there to his wife out of the Release Deed dated 19-01-2006 was not taken into account Crl.R.P.No.647/2012 13 by the Investigating Officer, was considered in favour of the accused by the Special Court, without noticing the fact that, the alleged Release Deed produced by the accused/respondent was not a registered deed and that it was not a public document. As such, any such contention of income from the alleged Release Deed should also to be the subject matter of the trial, however, the Special Court did not reasoned the point on these lines. Consequently, the same went to the favour of the accused (respondent).
(iv) Fourthly, a sum of `3,63,574/- is contended as the rental income and shown in the Schedule at page No.497. One Sri. Krishnappa was examined by the Investigating Officer, which enquiry has shown that the said krishnappa was a tenant only for a period of six to seven years. Admittedly, no document is produced by the accused. The rent payable according to the accused was a sum of `1,500/- per month, which comes to `18,000/- per annum. Therefore, for seven years, it would be Crl.R.P.No.647/2012 14 `1,26,000/- (18x7), but not a sum of `3,63,574/-. This aspect also, the Special Court did not appear to have considered in its proper perspective.
Therefore, the reasons given by the Special Court on the alleged factual aspect of the types of income and the computation of the income appears to be not proper or correct at this stage and several of them were also required to be tested in a full-fledged trial, before coming to any conclusion, as such, it was not proper for the Special Court to arrive at a finding that, no materials are there to proceed further against the accused in the matter.
(v) Lastly, the Special Court observed that the Investigating Officer, particularly, CW-13 - Dr. S. Prakash - the Police Inspector had no authority given to him by the Superintendent of Police, authorising him to continue the investigation in the matter.
Crl.R.P.No.647/201215
The same was the main argument of the learned counsel for the accused (respondent) also.
15. The learned counsel for the accused (respondent), in support of his argument submitted that, the second proviso to Section 17 of the P.C. Act of 1988 mandates for an authorisation to be issued by a Police Officer not below the rank of a Superintendent of Police, for a Police Inspector to investigate in the matter for the offence under Section 13 (1)(e) of the P.C. Act of 1988. Admittedly, there is no letter of authority in favour of the third Investigating Officer in the instant case, i.e. Dr.S. Prakash, who was the Police Inspector at the relevant point of time. Therefore, the entire investigation conducted in the matter and the charge sheet filed stands vitiated.
In his support, learned counsel relied upon several of the judgments of the Hon'ble Apex Court which would be referred to herein afterwards at the relevant stage. Crl.R.P.No.647/2012 16
16. Section 5-A of the Prevention of Corruption Act, 1947 (hereinafter for brevity referred to as "the P.C. Act of 1947") (similar to Section 17 of the P.C. Act of 1988) was reading as below:
"5-A. Investigation into cases under this Act.-
(1) Notwithstanding anything contained in the Code of Criminal procedure, 1898, no police officer below the rank:-
(a) in the case of the Delhi Special Police establishment, of an Inspector of Police;
(b) in the presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police;
(c) in the presidency town of Bombay, of a
Superintendent of Police;
And
(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, 165, or Section 165-A of the Indian Penal Code or under Section 5 of this Act without the order of a Presidency Magistrate or a Crl.R.P.No.647/2012 17 Magistrate of the first class as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be, or make arrest therefor without a warrant:
Provided further that 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.
17. The learned counsel for the accused (respondent) in his argument on the point, relied upon the following judgments:
(1) In the case of STATE OF HARYANA AND OTHERS Vs. BHAJAN LAL AND OTHERS reported in 1992 Supp. (1) Supreme Court Cases 335 with respect to Section 5-A of the P.C. Act of 1947, which provision is almost similar to Section Crl.R.P.No.647/2012 18 17 of the P.C. Act of 1988, at paragraph 116 of its judgment was pleased to observe that, according to the second proviso to Section 5-A of the P.C. Act of 1947, 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.
Further in paragraph 117 of the same judgment, the Hon'ble Apex Court was further pleased to observe that, it means that a Police Officer not below the rank of an Inspector of Police authorised by the State Government in terms of the first proviso can take up the investigation of an offence falling under Clause (e) of Section 5(1) of the Act only on a separate and independent order of a Police Officer not below the rank of a Superintendent of Police.
(2) In the case of State of Karnataka Vs. B. Narayana Reddy reported in 2001 SCC OnLine Kar 673, after referring to several of the reported judgments including Bhajan Lal's case Crl.R.P.No.647/2012 19 (supra), a co-ordinate bench of this Court was pleased to observe in paragraph 16 of its judgment that, the reasons to be assigned under the second proviso (to Section 17) must be as to why investigation is being entrusted to a particular Officer of the lower rank like the Inspector of Police.
After noticing that no such authorisation was found in the case before it, the Court allowed the criminal revision petition and discharged the petitioner therein (accused) for the offence punishable under Section 13 (1)(e) read with Section 13(2) of the P.C. Act of 1988, however, it made clear that the FIR in those two cases were not quashed and the authorities were given liberty to proceed afresh in accordance with law, if they so desire.
(3) In the case of STATE INSPECTOR OF POLICE, VISHAKHAPATNAM Vs. SURYA SANKARAM KARRI reported in (2006) 7 Supreme Court Cases 172, the Hon'ble Apex Court had an occasion of analysing the second proviso to Section 17 Crl.R.P.No.647/2012 20 of the P.C. Act of 1988 and held that it was mandatory in character, as such, an offence referred in Clause (e) of sub- Section (1) of Section 13 shall not be investigated without the order of a Police Officer not below the rank of a Superintendent of Police.
(4) In the case of Babappa Vs. State by Lokayukta Police, Gulbarga reported in 2009 SCC OnLine Kar 187, where inter alia, a question did arise as to whether the investigation is vitiated for want of authorisation under Section 17 of the P.C. Act of 1988, a co-ordinate bench of this Court, after anlaysing various reported cases, has observed in paragraph 47 of its judgment that the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Mubarak Ali reported in AIR 1959 SUPREME COURT 707 has stated that, under Section 5-A of the P.C. Act of 1947, the statutory safeguards under Section 5-A of the Act must strictly be complied with for which they are conceived in public interest and were provided as guarantee against frivolous and vexatious proceeding. It Crl.R.P.No.647/2012 21 further observed that the Magistrate cannot surrender his discretion to a Police Officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It was further observed therein that, it was desirable that, the order giving the permission should ordinarily in the face of it disclose the reasons for giving the permission.
18. In the instant case, undoubtedly, CW-1 - Mr. K. Mohammed Jaffar - the Police Inspector, CW-12 - Mr. M.S. Jagadeesh Prasad - the Deputy Superintendent of Police and CW-13 - Dr.S. Prakash - the Police Inspector have conducted the investigation in the matter. CW-12 - Sri. M.S. Jagadeesh Prasad, being a Deputy Superintendent of Police is permitted under Section 17 of the P.C. Act of 1988, to conduct an investigation, whereas CW-1 - Sri.K. Mohammad Jaffar and CW-13 - Dr. S. Prakash are the Police Inspectors. Crl.R.P.No.647/2012 22
19. Learned Special Public Prosecutor for the revision petitioner - Lokayukta Police, relied upon a Notification dated 16-02-1991, issued by the Government of Karnataka, Home Department (Police Services), which Notification has authorised all the Inspectors of the Police, Office of the Karnataka Lokayukta, for the purpose of the first proviso to Section 17 of the P.C. Act of 1988. The said Notification, which is not opposed by the learned counsel for the respondent (accused) shows that, a Police Inspector is not declared as incompetent to conduct the investigation for the offence under Section 13 (1)(e) of the P.C. Act, of 1988. However, as per the second proviso to the said Section 17 of the P.C. Act, 1988, there must be a written authorisation by the Superintendent of Police authorising a Police Inspector to conduct investigation in the matter. According to Mubarak Ali's case (supra), which is referred in Babappa's case (supra), the said order must be a reasoned one. Crl.R.P.No.647/2012 23
20. In the Instant case, on the date 01-04-1990, the authority given to CW-1 - Sri. K. Mohammad Jaffar - the Police Inspector, to conduct an investigation in the matter can be found, which is not in dispute. However, there is no such authorisation in writing in favour of CW-13 - Dr. S. Prakash - the Police inspector, who has filed the charge sheet in the matter.
21. A reading of the judgments referred in Bhajan Lal's case (supra), B. Narayana Reddy's case (supra), Surya Sankaram Karri's case (supra) and Babappa's case (supra) mandates for such an authorisation by the Superintendent of Police. It has also been observed that the absence of such an authorisation may lead for dischargal of the accused, however, it has to be noticed that, it is not held that always and under any circumstance, an investigation conducted by a Police Inspector without any authorisation in writing by the concerned Superintendent of Police has absolutely and for ever vitiated in the eye of law, on the other hand, in Bhajan Crl.R.P.No.647/2012 24 Lal's case (supra) at paragraph 119, the Hon'ble Apex Court was pleased to observe as follows:
"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."
The said observation was made by the Ho'ble Apex Court after considering several if its previous judgments.
22. Similarly, in Surya Sankaram Karri's case (supra) also, at paragraph 21, the Hon'ble Apex Court was pleased to observe as follows:
" 21. it is true that only on the basis of the illegal investigation a proceeding may not be quashed unless Crl.R.P.No.647/2012 25 miscarriage of justice is shown, but, in this case, as we have noticed hereinbefore, the respondent had suffered miscarriage of justice as the investigation made by PW-41 was not fair."
In Babappa's case (supra) also, a co-ordinate bench of this Court has referred to Surya Sankaram Karri's case (supra) and observed that, merely because the investigation is illegal, the proceedings cannot be quashed unless miscarriage of justice is shown.
23. Thus, it is very clear that, if it is not shown to the Court that, due to the absence of any authorisation to a Police Officer, who has conducted part of the investigation, the accused has suffered miscarriage of justice, merely because of the alleged procedural irregularity, the charge sheet cannot be quashed.
24. In the instant case, nothing has been placed before the Court, either in the form of any material/documents or through argument that, non-obtaining of authorisation from Crl.R.P.No.647/2012 26 the Superintendent of Police by CW-13 - Dr. S. Prakash has caused any miscarriage of justice or caused any prejudice to the interest of the accused. Merely because there is absence of such an authorisation to one of the Investigating Officers, it would not vitiate the entire prosecution conducted in the matter, that too, particularly, when the check period is from the years 1979 to 2006 and the charge sheet is shown to have been filed in January 2010 i.e. more than twelve years back. Therefore, merely on a small technical reason, the accused cannot be discharged and no fresh investigation in the matter requires to be ordered.
25. However, the Special Court did not consider these aspects, but in a hurried manner, believing the contentions of the respondent (accused) about his alleged source of income under different heads and also by observing that a Police Officer cannot conduct an investigation, and without considering the Notification of the Government of Karnataka dated Crl.R.P.No.647/2012 27 01-04-1990, has jumped to a conclusion resulting in dischargal of the accused (respondent). Since the said finding of the Special Court is now proved to be an erroneous one, the same warrants interference at the hands of this Court and the application filed by the respondent/accused under Section 227 of the Cr.P.C. deserves to be dismissed.
Accordingly, I proceed to pass the following:
ORDER [i] The Criminal Revision Petition stands allowed;
[ii] The impugned order dated 24-01-2012, passed by the Court of the Principal Civil Judge, Bangalore Rural District, Bangalore, in Special Case No.3/2010, discharging the accused before it (respondent herein) from the offences punishable under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988, is set aside;Crl.R.P.No.647/2012 28
[iii] The application filed by the respondent (accused in the Special Court) under Section 227 of the Code of Criminal Procedure, 1973, read with Sections 17 and 19 of the Prevention of Corruption Act, 1988, stands dismissed;
[iv] The Court of the Principal Civil Judge, Bangalore Rural District, Bangalore, is directed to proceed in the matter, in accordance with law;
[v] In order to avoid any further delay in the matter, both side parties are directed to appear before the Special Court, without anticipating any fresh summons or notice from it on the date 16-12-2022 at 11:00 a.m. and co-operate in the speedy disposal of the matter.
[vi] In view of the fact that the matter is a very old one, wherein the charge sheet has been filed twelve years back, the early disposal of the Crl.R.P.No.647/2012 29 matter by the Special Court, but not later than six months from today, is highly appreciated.
Registry to transmit a copy of this order to the Special Court along with its records, immediately.
Sd/-
JUDGE BMV*