Karnataka High Court
Sri. M.S. Mahadevaswamy vs Sri. H.D. Kumaraswamy on 11 March, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.6825 OF 2022
BETWEEN:
SRI. M.S.MAHADEVASWAMY
S/O M.G.SUBBANNA
AGED ABOUT 59 YEARS
NO.151, VEERASHAIVA BEEDHI
SANTHEMARANAHALLI POST
CHAMARAJANAGAR TALUK AND DISTRICT - 571 115.
... PETITIONER
(BY SRI. K.S.PONNAPPA, ADVOCATE)
AND:
1. SRI. H.D.KUMARASWAMY
S/O H.D.DEVEGOWDA
AGED ABOUT 55 YEARS
NO.286, 3RD MAIN ROAD
PADMANABHANAGAR
BENGALURU - 560 070.
2. SMT. PADMA
W/O G.PURUSHOTTAMA
AGED ABOUT 50 YEARS
NO. 38/1, WAT STREET
BASAVANAGUDI
BENGALURU - 560 004.
2
3. KUM. SRIDEVI
D/O G.PURUSHOTHAMA
AGED ABOUT 32 YEARS
NO. 38/1, WAT STREET
BASAVANAGUDI
BENGALURU - 560 004.
4. SRI. CHETAN KUMAR
S/O G.PURUSHOTHAMA
AGED ABOUT 30 YEARS
NO.38/1, WAT STREET
BASAVANAGUDI
BENGALURU - 560 004.
5. SMT. K.B.SHANTHAMMA
W/O MAHALINGAPPA
AGED ABOUT 44 YEARS
PATTANAGERE VILLAGE
RAJARAJESHWARINAGAR
BENGALURU - 560 098.
6. SMT. REKHA S.CHANDRU
W/O S.CHANDRU
AGED ABOUT 44 YEARS
NO.1215, 1ST MAIN, 1ST CROSS
B.B.LAYOUT, BEML III STAGE
RAJARAJESHWARI NAGAR
BENGALURU - 560 085.
7. YOGA MURTHY
S/O CHENCHU NAIDU
AGED ABOUT 45 YEARS
NO.8, VIVEKANANDANAGARA
KATHRIGUPPE MAIN ROAD
BSK III STAGE, BENGALURU - 560 085.
3
8. B.NARASIMHULU NAIDU
S/O B.AKKAR NAIDU
AGED ABOUT 45 YEARS
NO.99/1, RAMRAO LAYOUT
KATTRIGUPPE, BSK III STAGE
BENGALURU - 560 085.
9. R.BALAKRISHNA
S/O RAJAGOPAL NAIDU
AGED ABOUT 45 YEARS
NO.82, GURUSAI NILAYA
1ST 'B' CROSS, 2ND MAIN
3RD STAGE, BSK
BENGALURU - 560 085.
10 . T.MURALIDHAR
S/O RAMACHANDRA NAIDU T.,
AGED ABOUT 45 YEARS
NO.2455, 9TH MAIN
17TH 'E' CROSS
BSK 2ND STAGE
BENGALURU - 560 070.
11 . G.MALLIKARJUNA
S/O G.MUNISWAMI NAIDU
AGED ABOUT 45 YEARS
NO.2455, 9TH MAIN
17TH 'E' CROSS, BSK 2ND STAGE
BENGALURU - 560 007.
12 . E.A.YOGENDRANATH
S/O E.ANANDA NAIDU
AGED ABOUT 39 YEARS
NO.80, 14TH CROSS
4
KATTRIGUPPE MAIN ROAD
NEAR L.N.TEMPLE VIDYAPEETA CIRCLE
BENGALURU - 560 050.
13 . P.JAGADISH
S/O P.A.NAIDU
AGED ABOUT 42 YEARS
NO.692, 7TH ACC MAIN
5TH BLOCK, BSK 3RD STAGE
BENGALURU - 560 085.
14 . D.S.DEEPAK
S/O D.RAMRAO
AGED ABOUT 39 YEARS
NO.194, KOUSTUBAM
9TH CROSS, BHEL 2ND STAGE
R.R.NAGAR, BENGALURU.
15 . M.SUBRAMANI
S/O MOTHULU NAIDU
AGED ABOUT 48 YEARS
NO.1/116, NEW KEMPEGOWDA LAYOUT
BSK 3RD STAGE, BENGALURU - 560 085.
16 . BALAJI INFRA
REP. BY YOGA MURTHY AND
DEEPAK D. S., (A7 AND A14) NO.08
VIVEKANANDANAGARA, KATHRIGUPPE
MAIN ROAD, BSK III STAGE
BENGALURU - 560 085.
17 . SHUBODHAYA BUILDERS
REP. BY NARASIMHALU NAIDU AND
YOGENDRANATH (A8 AND A12)
NO.99/1, RAMRAO LAYOUT
5
KATTRIGUPPE, BSK III STAGE
BENGALURU - 560 085.
18 . SUNRISE BUILDERS
REP. BY T.MURALIDHAR AND
SUBRAMANI (A10 AND A15), NO.2455
9TH MAIN, 17TH 'E' CROSS
BSK II STAGE, BENGALURU - 560 070.
19 . ARATHI DEVELOPERS
REP. BY BALAKRISHNA MALLIKARJUNA
AND JAGADISH (A9, A11 AND A13), NO.82
GURUSAI NILAYA, 1ST 'B' CROSS
II MAIN, BSK III STAGE, 5TH BLOCK
BENGALURU - 560 085.
20 . STATE OF KARNATAKA
BY THE LOKAYUKTHA POLICE
BENGALURU CITY, M.S.BUILDING
AMBEDKAR VEEDHI
BENGALURU - 560 001
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR OF LOKAYUKTHA.
... RESPONDENTS
(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KARIAPPA N. A., ADVOCATE FOR R1;
SRI. V.V.GUNJAL, ADVOCATE FOR R2 TO R4;
SRI. H.T.JAGANNATHA, ADVOCATE AND
SRI. M.DEEPAK, ADVOCATE FOR R5 AND R6;
SRI. G.V.SUDHAKAR, ADVOCATE FOR R7 TO R19;
SRI. VENKATESH S.ARBATTI, SPL. PP. FOR R20 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 25.03.2022 IN
SPL.C.C.NO.1009/2019 PASSED BY THE XC ADDITIONAL CITY
6
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-91) DISMISSING
THE APPLICATION FILED BY THE PETITIONER U/S.173(8) OF CRPC
1973 AND CONSEQUENTLY ALLOW THE APPLICATION BY
DIRECTING THE RESPONDENT NO.20 TO CONDUCT FURTHER
INVESTIGATION.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 15.12.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question an order dated 25-03-2022 passed by the XC Additional City Civil and Sessions Judge, Bengaluru in Special C.C.No.1009 of 2019 rejecting the application filed by the petitioner under Section 173(8) of the Code Criminal Procedure seeking further investigation into the complaint against the respondents.
2. The facts, in brief, germane are as follows:-
The petitioner is the complainant. The petitioner registers a private complaint against respondents 1 to 19 which is then referred for investigation under Section 156(3) of the Cr.P.C. to the Lokayukta Police on 04-07-2012 for offences punishable under Sections 120-B r/w 406, 420, 463, 465, 468, 471 of the Indian 7 Penal Code, Sections 13(1)(c), 13(1)(d), 13(1)(e) r/w 13(2) of the Prevention of Corruption Act and Sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act, 1991. The 1st respondent challenged the said action of registration of criminal case against him before this Court in Criminal Petition No.6794 of 2019. A co-
ordinate Bench of this Court in terms of its order dated 9-10-2020 rejected the criminal petition holding that there was sufficient material to proceed against the petitioner therein, 1st respondent herein for the aforesaid offences. During the process of trial, the petitioner files an application under Section 173(8) of the Cr.P.C.
seeking further investigation into the matter. This comes to be rejected by the impugned order dated 25-03-2022. It is calling the said order in question, the petitioner is before this Court in the subject petition.
3. Heard Sri K.S.Ponnappa, learned counsel appearing for the petitioner, Sri Hashmath Pasha, learned senior counsel appearing for Sri N.A.Kariappa, learned counsel appearing for respondent No.1, Sri V.V.Gunjal, learned counsel appearing for respondents 2 to 4, Sri H.T.Jagannatha, learned counsel appearing for 8 respondents 5 & 6, Sri G.V.Sudhakar, learned counsel appearing for respondents 7 to 19 and Sri Venkatesh S.Arbatti, learned Special Public Prosecutor for respondent No.20.
4. The learned counsel appearing for the petitioner would vehemently contend that the investigation conducted and the material taken note of by the Investigating Officer are completely contrary to the records and, therefore, a further investigation into the matter was imperative. The learned counsel would seek to take this Court through various documents right from the date on which the de-notification of lands were proposed and done by the 1st respondent who was then the Chief Minister of the State of Karnataka. The learned counsel would attack the findings on the 'B' report and contents that there were several lacunae by the Investigating Officer in recording 'B' report. Statements of various persons were not taken note by the Investigating Officer is the prime reason for the petitioner to prefer the application under Section 173(8) of the Cr.P.C. seeking further investigation into the matter. He would submit that if further investigation is not permitted grave prejudice would ensue to the petitioner and it 9 would be contrary to the acts done by the 1st respondent being the Chief Minister at the relevant point of time.
5. Per-contra, the learned senior counsel Sri Hashmath Pasha appearing for respondent No.1 would take this Court through the earlier orders passed. He would submit that it is no doubt true that the Lokayuktha police after investigation had filed a 'B' report. The 'B' report comes to be rejected by the concerned Court in terms of its order dated 4-09-2019. This rejection was called in question before this Court in the aforesaid petition. This Court finds that there was sufficient material to proceed against the 1st respondent and rejects the petition. After rejection, the evidence in the case at hand was to proceed. It is during the pendency of the trial which was at the advance stage, the petitioner comes up with an application under Section 173(8) of the Cr.P.C. Apart from what formed the contents of the application under Section 173(8) Cr.P.C., it was completely contrary to law, as the stage at which further investigation could be ordered had already been over. He would seek dismissal of the petition.
106. The learned counsel appearing for respondents 7 to 19 would also toe the lines of the learned senior counsel representing the 1st respondent. The Special Public Prosecutor representing the Investigating Officer - respondent No.20 would submit that the Investigating Officer though had filed a 'B' report the concerned Court by a detailed order rejected the 'B' report and there is no warrant for further investigation into the matter.
7. The learned senior counsel for the 1st respondent would further submit that the petitioner wants to get political mileage against the 1st respondent. It is, therefore, he has preferred the subject application after framing of charges. He seeks dismissal of the petition.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. A private complaint comes to be registered against several accused for the aforesaid offences. The 1st respondent was at the relevant point of time the Chief Minister of the State of Karnataka.
11Issue in the complaint was de-limitation of certain lands during his tenure as the Chief Minister. The learned counsel for the petitioner has taken this Court through several documents from the year 1989 till the date of registration of crime i.e., in the year 2012 to buttress his submission that a further investigation into the matter is necessary to be conducted. For consideration of the case of the petitioner in the subject petition, a little travel in the history of litigation of the 1st respondent is germane to be noticed.
10. On registration of private complaint, the 1st respondent approaches this Court in Criminal Petition No.4024 of 2012. What was called in question therein was a reference made by the concerned Court under Section 156(3) of the Cr.P.C. to the Lokayukta Police who then registered a crime in Crime No.60 of 2012. Therefore, the 1st respondent at the first opportunity available was before this Court, as the 1st respondent herein was accused No.1. This Court recorded entire spectrum of facts and by a detailed order rejected the criminal petition holding that the nature of allegations made against the 1st respondent would require investigation. It was further recorded that the complainant's 12 counsel was heard, material on record was perused and the Special Judge had referred the matter for investigation. The order did not suffer from any non-application of mind. Therefore, the investigation was permitted to continue in Crime No.60 of 2012.
Investigation continues. The Lokayukta Police file a 'B' report. The 'B' report was contested by the complainant before the learned Sessions judge. Again by a detailed order on 04-09-2019 the learned Sessions Judge rejected the 'B' report and directed registration of crime against accused No.1, respondent No.1 in the subject petition along with others. The reasons so rendered by the concerned Court are germane to be noticed and they read as follows:
".... .... ....
15. As could be seen from the allegations made in the complaint as well as the protest petition, it is specifically alleged by the complainant that these accused persons have committed the offences punishable u/s 120B, 406, 420, 463, 465, 468, 471 of IPC, Section 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of the Prevention of Corruption Act and also Sections 3 and 4 of the Karnataka land (Restriction and Transfer) Act, 1991 read with Section 34 of the Indian Penal Code.
16. According to the complainant accused No.1 by abusing his position in connivance with other accused persons has committed the offences as alleged in the complaint. It is alleged that there existed Banashankari 5th Stage Layout and the land involved in this complaint are 13 Sy.No.128 measuring 1 acres 10 guntas of Halagevaderahalli village and Sy.No.137 measuring 1 acre 14 guntas of same village acquired by Government of Karnataka, so also BDA, who were the absolute owners of the land with effect from 29-09-1999. Despite the said fact, specific allegations have been made by the complainant that, the accused in furtherance of the conspiracy entered into between themselves a sale deed in respect of Sy.No.128 and 137 of Halagevaderahalli village to the extent of 1 acre 10 guntas for a sum of Rs.43,75,000/- and Rs.47,25,000/- on 13-12- 2004 in favour of K.B.Shanthamma and Smt. Rekha s. Chandru. These persons are alleged as accused Nos. 5 and 6 in this complaint. These accused Nos. 5 and 6 sold the said land in favour of accused No.7 to 15 for a sale consideration of Rs.4,14,00,000/- on 10-03-2010 and again on 31-03- 2011 a registered Memorandum of Understanding came in to existence to share the benefits of the subject land, by floating the firms accused No.16 to 19. Thus, specific allegations have been made by the complainant that, the very essence of the Act of De-Notification did by accused No.1 is illegal and he had no power to order for De- Notification and it was done in violation of rules prescribed for De-Notification and in ignorance of the recommendations of the competent authority as well.
17. It is alleged that accused No.1 was a Chief Minister in between 03-06-2006 and 08-10-2007 and the orders of De-Notification have been passed on 03-10-2007. The observations of the member secretary to the effect that possession has been taken in 1999 have been wrongly construed and it is observed that non-issuance of notification u/s 16 does not mean that possession was not taken. The mahazar was drawn as per the records of BDA and possession was taken. Process of acquisition of the land was completed. Without application of mind accused No.1 has acted in violation of the provisions of IPC as well as Prevention of Corruption Act and other laws.
18. Thus, it is alleged that accused No.1 proceeded for De-Notification and referred valid grounds on the application but the De-Notification, later sale deed shows about the earning of crores of Rupees. These allegations made by the complainant have been reiterated in his sworn statement. He 14 places reliance as per Ex.P-1 to P-25 in support of his sworn statement.
19. On reading of the contents of the complaint as well as the contents of the sworn statement and documentary evidence at this stage, the complainant has made out a prima-facie case, so as to issue process against accused persons. So, therefore, in the considered view of this Court, if all the factual features, complaint allegations made in the complaint and sworn statement are considered together with documents, the complainant in this case has made out a case to issue process against accused persons for the offences punishable u/s 120B, 406, 420, 463, 465, 468, 471 of IPC, Section 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of the Prevention of Corruption Act and also Sections 3 and 4 of the Karnataka land (Restriction and Transfer) Act, 1991. Hence, I record my finding on point No.1 in the affirmative.
20. Counsel for the complainant submitted, that, the offences so alleged against the accused are under the provisions of the Indian Penal Code as well as under the provisions of Prevention of Corruption Act and Section 3 and 4 of Karnataka Land (Restriction and Transfer) Act, 1991. He submits that in view of the allegations made in the complaint as well as the documents, sworn statement, sanction in this case is not required to prosecute the accused persons. In support of his submission, he placed reliance on the provisions of Section 197 of Cr.P.C wherein it speaks about prosecution of Judges and Public Servants.
21. As per the submission of the counsel for the complainant, no doubt accused No.1 is a public servant but he has committed the offences punishable under the provisions of Indian Penal code which were not in discharge of his duties. So also under the provisions of Prevention of Corruption Act, he cannot claim immunity. The offences are punishable u/s 120B, 406, 420, 463, 465, 468, 471 of IPC, Section 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of the Prevention of Corruption Act and Sections 3 and 4 of Karnataka land (Restriction and Transfer) Act, 1991. In support of his submission, he placed reliance on the judgment of Hon'ble Supreme Court of India, State v/s. M.P.Guptha reported in 2004(2) SCC 349 page 4174.
1522. It is true that the question as to, when previous action to public servant is required, is an important question. But there are catena of decisions from the Supreme Court of India on this issue. The recent judgment of Hon'ble Supreme Court of India, reported in 2016(6) SCC 734 in case of Amal Kumar Tua v/s. State of Chattisgarh. In this judgment the Hon'ble Supreme Court has virtually re-iterated what have stated in earlier decisions. Hence, no sanction is required to prosecute accused persons. In the result, I proceed to pass the following ORDER Register a criminal case against accused Nos. 1 to 19 for the offences punishable u/s 120B, 406, 420, 463, 465, 468, 471 of IPC, Section 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of the Prevention of Corruption Act and Sections 3 and 4 of Karnataka land (Restriction and Transfer) Act, 1991.
Issue process against all the accused
persons, if P.F is paid."
The 1st respondent again knocks at the doors of this Court challenging the action of the learned Sessions Judge in rejecting the 'B' report and directing registration of crime against the private respondents in Criminal Petition No.6794 of 2019. A co-ordinate Bench of this Court, by a detailed order, rejects the claim of the 1st respondent that 'B' report ought to have been accepted by the concerned Court by the following order:
16".... .... ....
22. In the instant case, a perusal of the case records reveal that the learned magistrate has adopted the third course open to him. The records indicate that by a detailed and considered order, the Special court rejected the 'B' summary report vide order dated 20.07.2019. This order is self-explanatory and clearly reflects that by assigning cogent reasons, learned Special Judge rejected the 'B' summary report and thereafter, took cognizance of the offences under sections 120-B, 406, 420, 463, 465, 468, 471 IPC and section 13 (1) (c), 13 (1) (d), 13(1) (e) and 13(2) of Prevention of Corruption Act and sections 3 and 4 of Karnataka Land (Restriction and Transfer) Act, 1991
23. It is evident from the order dated 20.07.2019 that cognizance has been taken on the basis of the original complaint as per section 190(1) (a) of the Code, as by then, the police report was rejected and thereafter the trial Judge proceeded to examine the complainant upon oath as per section 200 Cr.P.C. and on considering the sworn statement and the documents produced by the complainant ordered issuance of process by a separate and considered order dated 04.09.2019. This procedure, in my view, is in consonance with the procedure laid down in the above decision and does not suffer from any error or procedural irregularity as sought to be made out by learned Senior Counsel for petitioner.
24. The contention based on the alleged violation of the procedural requirements of sections 190 and 200 Cr.P.C. appears to have been canvassed by misreading the observations of the Hon'ble Apex Court in para 18 of the above judgment wherein it is held 'Thus, when he proceeds to take action by way of cognizance by disagreeing with the conclusions arrived at in the police report, he would be taking cognizance on the basis of the police report and not on the complaint and therefore, the question of examining the complainant or his witnesses under section 200 of the Code would not arise. This was the view clearly enunciated."
25. The above observations relates to the facts of the said case. A careful reading of the judgment in Vishnu 17 Tiwari's case Indicates that the criminal law was set in motion in that case not on the basis of the private complaint under section 200 Cr.P.C., but on the basis of the first information report under section 154 Cr.P.C. and in that background, it was held that when the Magistrate proceeds to take action by way of cognizance by disagreeing with the conclusion arrived at in the police report, there was no question of examining the complainant or his witnesses under section 200 Cr.P.C. It is obvious, that when action is initiated by lodging the FIR, there is no complaint on record and therefore the question of examining the complainant or his witnesses under section 200 Cr.P.C. does not arise at all. Whereas, in the instant case, indisputably, proceedings against the petitioner were initiated under section 200 Cr.P.C. based on the complaint and therefore the procedure adopted by the learned Magistrate in taking cognizance of the offences based on the complaint and the protest petition is in conformity with the principles enunciated in the above decisions. As a result, I do not find any merit in the first limb of the contentions urged by learned Senior Counsel for the petitioner.
26. The next contention urged by the learned Senior Counsel that the sworn statement of the complainant is vitiated for the reason that it was recorded with the assistance of an Advocate, also does not merit acceptance. No-doubt, it is true that as held by this Court in K. VENKATARAMAIAH & OTHERS v. KATTERAO S. DESHPANDE, 2008 Crl.L.J. 1547, "10. When a specific procedure is contemplated under Section 200 of Cr.P.C., it cannot be deviated by adopting some other procedure which is not prescribed, even though it may be convenient to the complainant. The purpose of recording the substance of sworn statement by the Magistrate is to enable the Magistrate to satisfy himself of the allegation in the complaint to proceed further in the matter. Under Section 200 Cr.P.C., the Magistrate himself examines the complainant and the witnesses and records the substance of the same. The Magistrate is under obligation to reduce the substance of the statement in writing which is to be signed by the complainant and 18 the witnesses. If an affidavit is accepted, it would go contrary to the provisions of Section 200 of Cr.P.C. In my opinion, Section 200 of Cr.P.C. does not contemplate acceptance of affidavit in the form of sworn statement nor affidavit partakes the character of sworn statement as required under Section 200 Cr.P.C. Sworn statement does not require any cross- examination nor requires a recording of the statement at the instance of an advocate. It is not an examination-in-chief, but it is the statement made before the Magistrate for his satisfaction. The filing of an affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of Cr.P.C. and it is inadmissible."
27. But, in the instant case, on examining the sworn statement of the complainant, it is noticed that first eight lines of examination of the complainant was recorded with the assistance of his counsel on 26.07.2019 and thereafter, the examination of the complainant was deferred. The further examination of the complainant was resumed on 08.08.2019 and this statement as well as the statement recorded on 21.08.2019 is personally given by the complainant without the assistance or presence of the Advocate. All the material allegations are found in the statement recorded on 08.08.2017 and 21.08.2019. This statement therefore does not suffer from any vices as contended by learned Senior Counsel. As a result, the first limb of argument canvassed by the learned Senior Counsel is rejected.
28. Coming to the next limb of objections regarding non- application of mind and non-consideration of the material produced by the complainant is concerned, at the threshold, it should be noted that at the stage of issuing process, the learned Special Judge or the learned Magistrate is not required to analyse and sift the evidence and is not required to assign elaborate reasons in justification of its order. At the stage of issuance of process, the learned Magistrate or court is required to find out whether the sworn statement and the material produced in support thereof prima-facie disclose the commission of offences and prima- facie case for trial is made out. On perusal of the impugned 19 order, I find that such exercise has been carried out by the learned Special Judge. It is seen from the impugned order that the learned Special Judge has adverted his mind to the allegations made in the complaint and has referred to the documents produced by the complainant and as well as the provisions of law applicable to the facts stated therein. Therefore, the contention of learned Senior Counsel for petitioner that the impugned order has been made without considering the material on record and without application of mind, cannot be accepted. Even otherwise, the petitioner having approached this Court under section 482 Cr.P.C. challenging the interlocutory order passed by the court below, power under section 482 Cr.P.C. cannot be exercised to quash the said order on the purported ground, unless the petitioner has been able to point out any patent illegality or error amounting to abuse of process of Court or failure of justice. No such fundamental error or defect of jurisdiction has been pointed out by learned Senior Counsel for the petitioner warranting interference of this Court under section 482 of Cr.P.C.
29. In view of the above conclusion, though I am not required to consider the submissions urged by learned Senior Counsel for petitioner assailing the impugned order on the ground of non-consideration of material, yet, I have looked into the documents produced by the complainant before the learned Magistrate only for the limited purpose of ascertaining whether prima-facie case has been made out by the complainant for issuance of process to the petitioner for the alleged offences. In this regard, it is relevant to note that the various documents produced by the complainant at Exs- P1 to P25 disclose that in relation to land bearing Sy. No. 128, the Special Land Acquisition Officer had passed an award on 28.04.1998. which was approved by Deputy Commissioner (LA), BDA on 16.05.1998. In relation to land bearing Sy.No. 137, the SLAO passed the award on 04.05.1998 which was approved by Deputy Commissioner (LA), BDA on 25.05.1998. Thereafter, possession of the said lands was taken on 29.09.1999 and handed over to the engineering section of the BDA on the very same day to form the layout. Thus, the said lands vested in the BDA with effect from 29.09.1999.
2030. On 19.09.2005, accused No.2 filed a representation requesting for de-notification of the said lands. The Petitioner/accused No.1 who was the Chief Minister of Karnataka from 03.02.2006 upto 09.10.2007 called for the records and the file pertaining to request made by Accused No.2, by order dated 04.09.2006. Thereafter, as per paragraphs No.17 and 18 of the said file, passed the order for de-notifying the said lands. Subsequently by order dated 01.10.2007, the notification was approved and on 03.10.2007, the notification was issued thereby de-notifying the said lands purporting to act under Section 48 of the Land Acquisition Act, 1894 vide Notification No. UDD/434/MNX/2007, Bangalore dated 01.10.2007 which was issued specifically with respect to the said lands.
31. It is relevant to note that the report dated 30.12.2005 of BDA specifically states that possession of the said lands has been taken on 29.09.1999. The order passed by the accused No.1/petitioner has been passed ignoring the notes at paragraphs 4 to 16 of the said file, which were suggestive of closure of the file under "D" Category. Paragraph 9 states that the possession was already taken and the said lands cannot be dropped from the acquisition. Further para 10 noted the closure of the file under D Category; para 11 stated that the case has not been placed before the notification committee and has been directly sought by the office of the Chief Minister.
32. Ignoring all the above aspects, especially the notings of the competent authorities and the report dated 30.12.2005 of the BDA at paras 4 to 6 of the said file, petitioner passed the order at paras 17 and 18 purportedly in terms of Government of Karnataka (Transaction of Business) Rules, 1977. This order on the face of it appears to be bad for the reason that on the date of submitting the representation dated 19.08.2005, accused Nos.2 to 4 were not the owners of the said lands, since the land had vested in the Government of Karnataka. Further, as on the date of passing the order of de-notification, Nos.2 to 4 had already sold the said lands to accused Nos.5 & 6 under sale deeds dated 13.12.2004 for a sum of Rs.43,75,000/- and Rs.47,25,000/-. Thereafter, vide sale deed dated 10.03.2010, accused Nos.5 & 6 sold the said lands in favour 21 of accused No.7 to 15 for a sale consideration of Rs. 4,14,00,000/-. Thereafter, accused Nos.7 to 15 entered into Memorandum of Understanding dated 31.03.2011 with accused Nos.16 to 19, which are the firms floated by accused Nos.7 to 15.
33. The above facts, in my view, squarely attract the ingredients of the offences under section. 13(1) (c), 13(1)
(d) 13(1) (e) of the Prevention of Corruption Act and the provisions of Karnataka Land (Restriction of Transfer) Act. Though, learned Senior Counsel for petitioner has vehemently contended that the allegations made in the complaint and the material produced in support thereof do not prima-facie constitute the offence under section 13(1)
(e) of Prevention of Corruption, Act, yet, having regard to the fact that at the stage of taking cognizance, the learned Magistrate is only required to ascertain the prima-facie application of provisions of law to the facts of the case and adequate opportunity would be available to the petitioner/accused under section 245 Cr.P.C. to put forth a case for his discharge on the ground of lack of material to proceed against him, I do not find it proper to record any finding on the said contention, lest, it would prejudice the case of the petitioner in the course of trial. Liberty therefore is reserved to the petitioner to canvass this plea before the trial court at the stage of framing charge. For the same reason, the argument of learned Senior Counsel for petitioner that the complainant was a stranger to the transaction in question and was not conversant with the dealings in question, also cannot be accepted. The material produced before the learned Special Judge goes to show that the alleged offences are sought to be substantiated through documentary evidence and not on oral evidence. Since documents produced before the Court prima-facie make out the ingredients of the above criminal offences requiring summons to the petitioner, I do not find any justifiable reason to interfere with the impugned order on the purported contentions raised in the petition. As a result, even the second limb of argument canvassed by learned Senior Counsel for petitioner is liable to be rejected and is accordingly rejected.
Reg.Point No.2 22
34. Coming to the question of sanction, this issue is already concluded by orders of this Court in Crl.P.No.4024/2012. As already stated above, this Court has recorded a clear finding that in the circumstances of the case and having regard to the nature of the allegations leveled against the petitioner, sanction under section 197 Cr.P.C. and section 19 of Prevention of Corruption Act is not necessary. The Hon'ble Supreme Court has refused to interfere with the said order, as such, this order has attained finality. This order is binding on the petitioner and therefore he is estopped from raising this issue at every stage of the proceedings. Hence, without entering into any further discussion on this issue, the contention urged by learned Senior Counsel for petitioner as to the requirement of prior sanction for prosecution of the petitioner is also rejected.
Reg. Point No.3
35. In the light of this discussion and for the reasons stated above, impugned orders do not call for interference by this Court under section 482 Cr.P.C. There are sufficient material to proceed against the petitioner for the alleged offences. In the absence of any material to show that the action initiated against the petitioner is an abuse of process of court and has resulted in failure of justice, there is no ground to quash the impugned proceedings as sought for in the petition.
As a result, the petition is liable to be dismissed and is accordingly dismissed."
After the dismissal of the petition filed by the 1st respondent, the matter was set for framing of charges and was at the stage of hearing the complainant and the accused before framing of charge.
Certain orders passed at that stage before the concerned Court 23 become germane to be noticed. The order dated 29-10-2021 reads as follows:
"Complainant absent. Learned counsel for the complainant filed an application under Section 256 of Cr.P.C seeking exemption for the appearance of the complainant. Heard. Application under Section 256 of Cr.P.C is allowed. Complainant is exempted from appearing before the Court for the day for the reasons mentioned in the application.
Accused No. 9, 10, 12 to 15 present. Accused No.18 represented by accused No.10 and 15 and accused No.19 represented by accused No.9, 11 and 13 present. Accused No.1 to 8, 11, 16, 17 absent. Learned counsel for the accused No.1 to 8, 11, 16, 17 filed applications under Section 317 of Cr.P.C seeking exemption for the appearance before the Court. Heard. Applications filed under Section 317 of Cr.P.C are allowed. Accused No.1 to 8, 11, 16, 17 are exempted for the appearance before the Court for the day.
Learned counsel for the complainant prays time to lead evidence before charge on the ground that the complainant is not keeping well and admitted in Hospital at Mysuru.
For evidence before Charge by 01-12-2021."
Order dated 18-01-2022 reads as follows:
"Complainant absent. Learned counsel for the complainant filed an application under Section 256 of Cr.P.C seeking exemption for the appearance of the complainant. Heard. Application under Section 256 of Cr.P.C is allowed. Complainant is exempted from appearing before the Court for the day for the reasons mentioned in the application.
Accused No.1 to 19 absent. Learned counsel for the accused No.1 to 19 filed applications under Section 317 of Cr.P.C seeking exemption for the appearance before the Court. Heard. Applications filed under Section 317 of Cr.P.C 24 are allowed. Accused No. 1 to 19 are exempted for the appearance before the Court for the day.
Learned counsel for the complainant prays time to lead evidence before charge on the ground that the complainant is not keeping well and admitted in JSS Hospital at Mysuru and undergoing dialysis.
Learned counsel for the complainant is directed to produce medical records of the complainant on the next date without fail.
In view of SOP dated 4-01-2022 of Hon'ble High Court of Karnataka, case is adjourned.
For evidence before Charge by 11-02-2022."
Order dated 11-02-2022 reads as follows:
"Complainant present.
Accused No.5, 9, 10, 12, 14, 15 present. Accused No.17 represented by accused No.8 and accused No.18 represented by accused No.10 and 15. Accused No.1 to 4, 6 to 8, 11, 13, 16 and 19 are absent. Learned counsel for the accused No.1 to 4, 6 to 8, 11, 13, 16 and 19 filed applications under Section 317 of Cr.P.C seeking exemption for the appearance before the Court. Heard. Applications filed under Section. 317 of Cr.P.C are allowed. Accused No.1 to 4, 6 to 8, 11, 13, 16 and 19 are exempted for the appearance before the Court for the day.
Learned counsel for the complainant filed an application under Section 173(8) of Cr.P.C., seeking further investigation.
For evidence before charge and hearing on application filed under Section 173(8) of Cr.P.C., by 23.02.2022."25
The petitioner on the said date, files application under Section 173(8) of the Cr.P.C. seeking further investigation. A perusal at the afore-quoted orders would clearly indicate that the matter was at the stage of framing of charge and was being listed for evidence before charge. The concerned Court on 11-02-2022 had passed the aforesaid order and directed the matter to be listed on 23-02-2022.
On 23-02-2022 the Court passes the following order:
"Accused No.5, 6, 9 to 11, 13 to 15 present. Accused No.18 is a company represented by accused No.15 present. Accused No.19 is a company represented by accused No.13 present. Accused No.1 to 4, 7, 8, 12, 16, 17 are absent. Learned counsel for the accused No.1 to 4, 7, 8, 12, 16, 17 filed applications under Section 317 of Cr.P.C seeking exemption for the appearance before the Court. Heard. Applications filed under Section 317 of Cr.P.C are allowed. Accused No.1 to 4, 7, 8, 12, 16, 17 are exempted for the appearance before the Court for the day.
The learned counsel for accused No.7 to 19 filed objection to the application filed under Section 173 (8) of Cr.P.C.
For evidence before charge and hearing on application filed under Section 173(8) of Cr.P.C., by 07.03.2022."
The matter was heard on the application filed by the petitioner seeking further investigation into the matter and by the impugned order passed on 25-03-2022 the Court rejects the application. After rejecting the application, the matter was directed to be listed for 26 arguments before framing of charge or hearing before charge. It is adjourned finally to 08-07-2022 for appearance of the accused.
Immediately thereafter, the petitioner prefers the subject petition on 18-07-2022.
11. This Court, entertaining the petition, interdicts further proceedings on the ground that the issue stands answered by the judgment of the Apex Court that further investigation is also a norm that could be permitted at the stage of framing of charges even.
Therefore, it becomes germane to notice the reasons rendered by the concerned Court while rejecting the application filed under Section 173(8) of the Cr.P.C. They read as follows:
".... .... ....
14. Now the short question involved in the present case is whether this Court can direct the I.O. to make further investigation in the facts and circumstances of the case. It is pertinent to note that after filing of the complaint by the complainant, this Court referred the complaint for investigation under Section 156(3) of Cr.P.C. The Court can order investigation under Section 156(3) of Cr.P.C. only at the per-cognizance stage, that is to say, before taking cognizance under Section 190, 200 and 204 of Cr.P.C., and where the Magistrate or Special Judge decides to take cognizance under the provisions of Chapter 14, the Magistrate/Special Judge is not entitled in law to order any investigation under Section 156(3) OF Cr.P.C., though in 27 cases not falling within the proviso to Section 202, the Magistrate/Special Judge can order an investigation by the Police which would be in the nature of an inquiry as contemplated by Section 202 of the Code.
15. From reading of Sections 156 and 190, it is crystal clear that the power under Section 156(3) can be invoked by a Magistrate before he takes cognizance. But, if he takes such cognizance, he is not competent to switch back to the per-cognizance stage as provided under Section 156(3) of Cr.P.C. The Commentary on Code of Criminal Procedure by B.B.Mitra and Sen Gupta says that the order made under sub-section (3) of Section 156 is in the nature of intimation to the police to exercise their plenary powers of investigation under Section 156(1) and such an investigation embraces the entire process which begins with the collection of evidence under Section 156 and ends with a report under Section 173 of Cr.P.C. A Magistrate acting under Section 190 of Cr.P.C., before taking cognizance can ask for investigation by the police under Section 156(3) of Cr.P.C. If after taking cognizance, the Magistrate wants any investigation, it will be under Section 202 of the Code. So, the power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1) of Cr.P.C. The two operate in distinct spheres. The first is exercisable at the per-cognizance stage, the second at the post-cognizance stage. A reading of Section 202(1) would convince that the investigation referred to therein is of a limited nature. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further.
16. In Abhinandan Jha vs. Dinesh Mishra reported in AIR 1968 SC 117, Hon'ble Apex Court while considering the provisions of Sections 156(3), 169, 170 and 190 of the Code, held that there is no power, expressly or impliedly conferred under the code, on a Magistrate to call upon the Police to submit a charge-sheet, when they have sent a report under Section 169, that there is no case made out for sending up an accused for trial. It is nowhere spelt out in Criminal Procedure Code that defacto complainant may file application requesting direction from the Court for further investigation or re-investigation. The Court can exercise its 28 jurisdiction only within the realm of the code. Undisputedly, the investigation Agency under sub-Section 8 of Section 173 can request the Court to grant permission to investigate into the matter further. It does not provide rights to the defacto complainant to file such an application. Had the legislature intended to provide right to the defacto complainant for asking the Court for re-investigation or further investigation, it would have incorporated the required terms in the provisions. When the section does not curtail powers of the I.O. to take up further investigation, it has not provided any procedure enabling the de-facto complainant to take initiative to place a request for further investigation. The law does not postulate any power on the Judicial Magistrate to direct further investigation on behalf of the de-facto complainant. The Magistrate can suo motu order for further investigation under Section 173(8) of Cr.P.C. The defacto complainant may by filing protest petition draw Court's attention to the infirmities in the investigation and the Court on being satisfied may direct for holding further investigation. Such an order may be treated as order passed suo motu by the Court.
6. The learned counsel for the complainant has relied upon three decisions of the Hon'ble Apex Court, I have carefully gone through said decisions. In all these decisions, the police have filed charge sheet and sought for further investigation under Section 173(8) of Cr.P.C. But in this case, the police have not filed charge sheet, but filed only a police report under Section 169 of Cr.P.C. Therefore, the decisions relied upon by the learned counsel for the complainant are not applicable to the facts of this case.
7. In this case, the Police submitted a report not under Section 173(2) of Cr.P.C. The Police submitted a report under Section 169 of Cr.P.C., for insufficiency of evidence. Therefore, there is no charge sheet filed by the police against the accused. Since the I.O. submitted report under Section 169 of Cr.P.C., the complainant filed protest petition and this court took cognizance on the protest petition and posted the case for sworn statement and recorded sworn statement of the complainant and got marked documents and registered a criminal case and issued summons to the accused for their appearance and after the appearance of the accused, the 29 case is now set down for evidence before charge. When there is no charge sheet filed under Section 173(2) of Cr.P.C., question of issuing direction to the I.O. to make further investigation under Section 173(8) of Cr.P.C., does not arise. The complainant chosen the procedure contemplated under Chapter 15 of the Code. This Court cannot exercise power to direct the I.O. to conduct investigation under Section 202(1) of Cr.P.C. because, such a power could be exercised only before registering a criminal case and before issuing process against the accused for their appearance. In this case, this Court registered a criminal case against the accused and issued process and the accused have appeared before this court and the case is now set down for evidence before charge.
19. At this stage, it would be necessary to refer to a decision reported in (2017) 4 SCC 177 in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantabhai Patel. In the said decision, Hon'ble Apex Court has held as follows:
Though the Magistrate has the power to direct investigation under Section 156(3) at the pre- cognizance stage even after a charge sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant.
20. Therefore, the application filed by the complainant under Section 173(8) of Cr.P.C., seeking direction to the I.O. to conduct further investigation is not known to law. Therefore, the application is not maintainable and application is to be dismissed as not maintainable. However, the complainant can prove the allegations made against the accused by adducing oral evidence and producing documentary evidence. Accordingly, I answer point No.1 in Negative.
21. Point No.2. In view of the discussions made hereinabove, I proceed to pass the following:
30ORDER The application filed by the complainant under Section 173(8) of Cr.P.C., seeking direction to the Investigation Officer to conduct further investigation in the above case is hereby dismissed as not maintainable."
The concerned Court holds that further investigation under Section 173(8) of the Cr.P.C. can only be up to the stage of taking cognizance. The concerned Court was of the opinion that further investigation into the matter would amount to re-investigation and therefore, rejected the plea of the petitioner. The issue now would be, whether further investigation under Section 173(8) of the Cr.P.C. should be permitted or otherwise.
12. The Apex Court in the case of VINUBHAI HARIBHAI MALAVIYA v. STATE OF GUJARAT1 has held as follows:
".... .... ....
10. The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.
... ... ...
18. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually 1 (2019) 17 SCC 1 31 committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted.
It is the hovering omnipresence of Article 21 over CrPC that must needs inform the interpretation of all the provisions of CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.
... ... ...
42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409: (2008) 1 SCC (Cri) 440], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407: (2012) 3 SCC (Cri) 365] , Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762: (2013) 4 SCC (Cri) 557], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92:
(2014) 2 SCC (Cri) 86]; Hardeep Singh [Hardeep Singh v. State of Punjab,(2014) 3 SCC 92: (2014) 2 SCC (Cri) 86] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are 32 traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347: 2004 SCC (Cri) 1603].
Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177:
(2017) 2 SCC (Cri) 331] , Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298: (2019) 1 SCC (Cri) 594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542: (2019) 2 SCC (Cri) 613] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129: (2009) 3 SCC (Cri) 1051] also stand overruled."
The Apex Court holds that Magistrate's powers to order further investigation would not cease upon process being issued and the accused appearing before the Magistrate. But will continue till the stage of trial commences. In the light of the judgment rendered by the Apex Court in VINUBHAI HARIBHAI MALAVIYA (supra), the 33 petitioner can be said to have semblance of right to seek further investigation as the term is 'yet to commence' and the matter is still at the stage of hearing before charge. But, what is that the petitioner wants as further investigation is necessary to be noticed.
13. The petitioner wants plethora of documents to be taken note of by the Investigating Officer which are events that have happened between 1995 and 2012. All these facts have been gone into by the learned Sessions Judge when he rejected the 'B' report on 4-09-2019. The rejection of 'B' report was challenged before this Court in Criminal Petition No.6794 of 2019. That also comes to be rejected again by recording elaborate reasons. The petitioner was the 2nd respondent therein. The petitioner nowhere indicated that a re-investigation into the matter was required. Though the finding was whether the 'B' report could be rejected or otherwise, the co-ordinate Bench has considered every submission made by the petitioner in the present petition while dismissing the petition preferred by the 1st respondent on rejection of 'B' report by the concerned Court. It was also observed that the petitioner therein 34 was at liberty to urge all the points before the concerned Court at the time of framing of charge.
14. Though the petitioner could have been right in law that one can seek further investigation into the matter up to the stage of commencement of trial, it is settled law that commencement of trial would happen on framing of charge, which stage is yet to come about as the issue is at the stage of hearing before charge. The petitioner loses his right, as the co-ordinate Bench of this Court has in elaboration considered all the factors that the petitioner wants to bring in, by way of a direction to the 20th respondent, the Investigating Officer to conduct further investigation. It would always be open to the petitioner or the respondents to seek production of certain documents under Section 207 of the Cr.P.C., for which purpose further investigation under Section 173(8) of the Cr.P.C. is a step unnecessary. If on the factors that the petitioner is projecting to get a further investigation done in the matter is considered on a deeper delving, it becomes unmistakably clear that the petitioner is not seeking further investigation but a re-
35investigation into the matter, which course is clearly impermissible at the stage of framing of charge.
15. For the aforesaid reasons, finding no merit in the petition and finding no error in the order impugned, the petition stands rejected. Interim order of any kind subsisting stands dissolved. The concerned Court is directed to conclude the proceedings as expeditiously as possible, as the issue is already 12 years old.
Sd/-
JUDGE bkp CT:MJ