Karnataka High Court

Amruthesh N P vs State Of Karnataka on 10 March, 2021

Author: Krishna S.Dixit

                           1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU      R
       DATED THIS THE 10th DAY OF MARCH, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

         CRIMINAL PETITION NO.4857 OF 2018
BETWEEN:

AMRUTHESH N P,
ADVOCATE,
AGED ABOUT 58 YEARS,
S/O LATE N C PUTTASWAMY,
R/AT NO.15/1, 1ST FLOOR,
3RD CROSS, SAMIPGE ROAD,
MALLESHWARA,
BANGALORE 560003.                 ... PETITIONER

(BY SRI. PAVAN CHANDRA SHETTY H, ADVOCATE)

AND:

  1. STATE OF KARNATAKA,
  REP BY KARNATAKA LOKAYUKTA POLICE,
  CITY WING,
  BENGALURU.

  2. G MUNIRATHNAM.
  S/O LATE SUBRAMANI NAIDU,
  AGED ABOUT 53 YEARS,
  MEMBER OF LEGISLATURE ASSEMBLY,
  RAJARAJESHWARI NAGAR CONSTITUENCY,
  R/AT NO.147, 11TH CROSS,
  VYALIKAVAL,
  BENGALURU 560003.

  3. MANJULA,
  AGE MAJOR,
  W/O SRI G MUNIRATHNAM,
  R/AT NO.147, 11TH CROSS,
  VYALIKAVAL,
  BENGALURU 560003.

  4. RAMABABU @ SOORAPPA BABU,
  PRODUCER CUM DISTRIBUTOR,
  C/O KARNATAKA FILM CHAMBERS,
                                   2

  NEXT TO GURURAJA KALYANA MANTAPPA,
  NEAR SHIVANANDA CIRCLE,
  BENGALURU.                    ... RESPONDENTS


(BY SRI. VENKATESH S ARABATTI, ADVOCATE FOR R1;
    SRI. RAGHAVENDRA K AND ALONG WITH
    SRI. C V NAGESH, SENIOR COUNSEL ADVOCATES FOR
  R2 AND R3; SRI. D R RAVISHANKAR, ADVOCATE FOR R4)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C,PRAYING TO QUASH THE ORDER ON
INTERLOCUTORY APPLICATION FILED UNDER SECTION 319
OF CR.PC, DATED 15.06.2018, PENDING ON THE FILE OF
THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT AT BANGALORE
(CCH-78) PRODUCED HEREWITH AS DOCUMENT NO.1 AND
CONSEQUENTLY ALLOW THE PETITIONER APPLICATION AS
PRAYED FOR THE COURT BELOW PRODUCED HEREWITH AS
DOCUMENT NO.2 AND ALLOW THIS CRIMINAL PETITION
WITH COSTS THROUGH OUT.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:

                            ORDER

Petitioner a practising advocate of repute and an

office bearer of Advocates Association, Bengaluru, is

invoking inherent jurisdiction of this Court under Section

482 of Code of Criminal Procedure, 1973 grieving against

the order dated 15.06.2018 whereby the learned judge of

the Special Court, Bengaluru, having rejected his

application filed under Section 319 of the Code has

declined to array the respondents as the accused in

S.C.C.No.455/2017 in which the trial is half way through.

After service of notice, respondents having entered

appearance through their advocates oppose the petition

arguing in support of the impugned order and the reasons

on which it has been structured.

2. Brief facts:

a) One Mr. Y.H.Srinivas of ¨¨sÀæµÁÖZÁgÀ «gÉÆÃ¢ü ªÉÃ¢PÉ"

Bhrastaachaara Virodhi Vedike, Yelahanka, Bengaluru,

lodged an FIR dated 27.12.2014 against five BBMP officials

named and others unnamed, with the first respondent -

Lokayukta Police; it was alleged in the said FIR that about

a thousand records/files concerning the BBMP contract

work were being fabricated in a private house, with intent

to swallow public money of about 120 crore rupees

fraudulently without doing any work; he also

mentioned about an i10 car used for carrying the files to

& fro.

b) The Lokayukta Police registered the FIR in Crime

No.60/2014 for the offences punishable under sections

13(1)(c) & (d) and 13(2) of the Prevention of Corruption

Act, 1988; after the accomplishment of investigation, the

said police filed the Charge Sheet against as many as ten

persons and thereby set them on trial in C.C.No.455/2017

for the offences punishable under the aforesaid provisions

of the P.C. Act and also Sections 471 & 420 of IPC; learned

judge of the Court below took cognizance of the offences

and framed charges.

c) After the trial began, petitioner herein filed an

application dated 12.03.2018 under Section 319 of the

Code seeking arraignment of the respondents herein as

additional accused; the application was founded on the

statement given by the second respondent to the police on

18.02.2015 under Section 161 of the Code; this was

opposed by the respondent - Lokayukta by filing

Objections dated 30.05.2018 contending that the

application was premature and that, there was no material

on record for implicating the said respondents.

d) Learned judge of the Court below having heard

the petitioner and the respondent - Lokayukta Police,

made the impugned order dismissing the subject

application; aggrieved thereby, petitioner is before this

Court. In support of his case, petitioner has relied upon

certain decisions, as has the respondents' side done for

opposing the petition.

3. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

declines to grant indulgence in the matter for the following

reasons:

A. As to locus standi of the petitioner to invoke section 319 of the Code; Antulay Case & Lok Ram Case:

        (a)   Learned     Sr.   Advocate      Mr.       C.V.Nagesh,

appearing     for   the   private      respondents      preliminarily

opposed the petition on the ground of lack of locus standi;

learned counsel for the petitioner by placing reliance on

A.R.Antulay Vs. R.S. Nayak, (1984) 2 SCC 500 with equal

vehemence, submitted that the doctrine of locus

standi being alien to criminal jurisprudence, any person

can set the criminal law in motion; he also presses into

service another decision in LOK RAM vs. NIHAL SINGH,

AIR 2006 SC 1892; the Apex Court at para 6 of its

decision in Antulay's Case observed as under:

"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general

principle gets excluded by such statutory provision..."

(b) True it is, that as a general norm of criminal

jurisprudence, anyone can set the criminal law into

motion, vide Antulay supra; however, this diction does not

mean that 'anyone & everyone' can do that in a kind of

relay, in a sense that, after one sets the criminal law into

motion, others can take it further; a criminal proceeding is

not like the native game of Kho Kho wherein one triggers

the movement of another, so on & so forth; admittedly, the

subject criminal case was initiated by the de facto

complainant, namely Mr. Y.H.Srinivas of Bhrastaachaara

Virodhi Vedike; for inscrutable reason he is not arrayed as

a respondent to the petition nor to the subject application

either; it is not the case of petitioner that for any culpable

reason, the said Vedike or Mr.Srinivas has not taken up

the case against the private respondents herein after the

police declined to set them for trial, and therefore, he is

espousing the cause; petitioner herein is neither the office

bearer of Vedike nor otherwise associated with it or with

Mr.Y.H.Srinivas; not even a whisper is made about this in

the application or the petition.

observed: "Power under Section 319 of the Code can be

exercised by the Court suo moto or on an application by

someone including accused already before it. If it is

satisfied that any person other than the accused had

committed an offence he is to be tried together with the

accused...". Learned counsel for the petitioner stressing

the word 'someone' occurring in the observation of the

Apex Court argues that it can be anyone & everyone; this

is bit difficult to countenance; more than a century ago, a

great Judge of US Supreme Court Justice Oliver Wendell

Holmes in TOWNE vs. EISNER (1918) had observed: "A

word is not a crystal, transparent and unchanged; it is the

skin of a living thought and may vary greatly in color and

content according to the circumstances and time in which it

is used..".

(d) By describing a word as above, Justice Holmes

gave a physical human attribute to language employed in

law & life acknowledging the degree to which it is an

embodiment of ideas; like all things with bodies, language

changes over time and in contexts; he also wrote about the

changing colour of words and thus brought the topic of

visual perception into the equation; one's perception of

colour itself is also dependent on context, as discussed by

German teacher of Visual Arts Mr.Josef Albers in his

famous book "The Interaction of Color" wherein he shows

how one colour radically different depending upon its

surroundings; although what Justice Holmes said is more

appropriate for the interpretation of statutes, it cannot be

said to be impertinent in construing the words used in

judgments & orders of courts.

(d) A word in a judgment cannot be construed as a

word employed in a legislative instrument; the Apex Court

in COMMISSIONER OF WEALTH TAX -vs- DR. KARAN

SINGH & OTHERS (1993) 4 SCC 500 at para 15 has

indicated as to how a judgment should be interpreted; the

observations are worth reproducing:

"15. ... The basic rules of interpreting Court judgments are the same as those of construing other documents. The only difference is that the Judges are presumed to know the tendency of parties concerned to interpret the language in the judgments differently to suit their purposes and the consequent importance that the words have to be chosen very carefully so as not to give room for controversy. The principle is that if the language in a judgment is plain and unambiguous and can be reasonably interpreted in only one way it has to be understood in that sense, and any involved principle of artificial construction has to be avoided. Further, if there be any doubt about the decision, the entire judgment has to be

considered, and a stray sentence or a casual remark cannot be treated as a decision...".

(e) The decision in Lok Ram supra, which is

heavily pressed into service by Mr. Shetty if perused in its

entirety does not suggest that the word 'someone' may

include an utter stranger to the proceedings, like the

petitioner herein although it arguably includes the de facto

complainant; the reason for this view is not far to seek;

para 3 of decision itself shows that the person who had

moved the application u/s.319 in that case was none other

than the de facto complainant - Nihal Singh; in construing

a decision, three basic postulates need to be kept in view:

(i) the fact matrix of the case, (ii) statement of principles

applicable to the legal problems arising from the said fact

matrix & (iii) the judgment based on the combined effect of

(i) & (ii); thus viewed, the proposition canvassed by the

petitioner does not find support from the said decision

cited; the diction that anyone can set the criminal law in

motion does not mean that once so set by someone, some

others can lay a challenge to the orders made by the court

in the pending criminal prosecution; an argument in

variance, if countenanced, would infuse abundant abuse

potential that may pollute the stream of administration of

criminal justice and thereby create enormous difficulty to

the criminal justice system; this is not desirable, to say the

least.

B. Public crimes; role of police in investigation of offence & in the prosecution of offenders; what Apex Court said:

(a) Although anyone can put the criminal law into

motion vide Antulay, the primary responsibility for

prosecuting the offender of public crimes rests on the

shoulders of the State; this, the State discharges initially

by donning the role of investigating agency, and later as

the prosecuting instrumentality; it is so because the public

crimes directly injure the public interest, although they

affect the individuals remotely; Kenny's Outlines of

Criminal Law, 15th Ed. Page 6 defines crimes as 'wrongs

whose sanction is punitive, and is no way remissible by any

private person, but is remissible by the Crown alone, if

remissible at all...'; respectfully referring to Kenny, a

renowned jurist G.W. Paton in "A Text Book of

Jurisprudence, 4th Ed. vide paragraph 78" writes: 'Firstly,

the Crown has control over proceedings... In crime, even

though a private prosecutor wishes to discontinue, the

Crown may continue the proceedings...Moreover, the Crown

has the right to pardon, whether the private prosecutor be

agreeable or not...'; consistent with this, a private person

even when he is a victim of the offence, is not normally

permitted to intrude in the process of prosecution; of

course, there are some exceptions to this general rule, into

which argued case of the petitioner does not fit.

(b) The Apex Court in Shiv Kumar Vs. Hukam

Chand, (1999) 7 SCC 467 at paras 12 & 13 observed that

the prosecution in a Sessions Court cannot be conducted by

anyone other than the Public Prosecutor; the legislature

reminds the State that this policy must strictly confirm to

fairness in the trial; in the scheme of the Code, a counsel

engaged by any private party can play his role under the

directions of the Public Prosecutor and he can file his Written

Arguments only if the court permits him to do so; a contra

argument if sustained may yield scope for polluting the

administration of criminal justice and put the criminal

justice system to difficulty; the right of an accused to a fair

trial may be jeopardized too; therefore, the well established

principle that anyone can set or put the criminal law into

motion cannot be stretched too far to permit a stranger to

the proceedings i.e., a person other than a de facto

complainant to lay a challenge to the orders of the criminal

court made in those proceedings; there may be marginal

exceptions to this general rule, is irrelevant in the absence

of such circumstances being shown from the record; thus,

the petitioner being an utter stranger to the criminal case,

has no right to invoke section 319 of the Code.

offences are two of the important duties of police in any

civilized jurisdiction governed by rule of law; the aim of

investigation is ultimately to search for the truth and bring

the offenders to the book; in the criminal justice system,

the investigation of an offence is primarily the domain of

the police, is now well established; therefore, courts

normally do not interfere in that, particularly when the

case does not indicate the absence of bona fide on the part

of investigating agency; in very rare cases where

investigatory power of the police is shown to have been

abused, court may intervene, is also true vide Amarnath

Chaubey Vs. UOI, AIR 2021 SC 109; in the case at hands

the police having investigated the offences, have filed the

charge sheet against the accused, having left the private

respondents for want of evidentiary material; learned trial

Judge having perused the entire evidentiary material on

record, has taken cognizance of the offence only against

the accused persons; which material supportive of the case

of the petitioner is escaped advertence of the learned trial

judge is not shown despite turning the pages of the record,

one after another.

(d) In UOI Vs. Sushil Kumar Modi, (1997) 4 SCC

770, a three Judge Bench of the Apex Court referred to R

vs. METROPOLITAN POLICE COMMR, (1968) 1 ALL ER

763 wherein Lord Denning had observed as under:

"...I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace; he must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things, he is not the servant of anyone, save of the law itself. No minister of the crown can tell that he must, or must not, prosecute this man or that one... Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."

The observation of the Apex Court at para 5 of the decision

being pertinent needs to be quoted:

"According to the Code of Criminal Procedure, 1973, the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority..."

The principle emanating from the above observations can

be taken as a general norm is true; but, as already

mentioned no special circumstances that constitute an

exception thereto is not forthcoming from the record.

C. As to Statement of second respondent u/s 161 of Cr.P.C; its admissibility & evidentiary value for the purpose of sec.319 of the Code:

(a) Learned counsel for the petitioner draws

attention of this court to section 161 Statement of the

second respondent recorded on 18.2.2015; it is in the

vernacular (kannada); the relevant paragraphs therein

which the learned counsel heavily banked upon have the

following text:

"1. ©.©.JA.¦. C¢üPÁgÀUÀ¼ÁUÀ°Ã CxÀªÁ ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉAiÀÄ C¢üPÁjUÀ¼ÁUÀ°Ã £ÀªÀÄä PÉëÃvÀæUÀ¼À°è PÉÊUÉÆ¼Àî¯ÁUÀÄªÀ PÉ®¸À-PÁAiÀÄðUÀ¼À ªÉÄÃ®Ä¸ÀÄÛªÁjAiÀÄ£ÀÄß £ÁªÀÅ £ÉÆÃqÀÄªÀÅ¢®è ºÁUÀÆ PÉ®¸À-PÁAiÀÄðUÀ¼À zÉÆÃµÀUÀ¼À §UÉÎ ¸ÀºÀ £ÁªÀÅ UÀªÀÄ£ÀºÀj¸ÀÄªÀÅ¢®è. PÁªÀÄUÁjUÀ¼À §UÉÎ ¸ÁªÀðd¤PÀjAzÀ ¤¢ðµÀÖ zÀÆgÀÄ §AzÀ°è, F §UÉÎ UÀªÀÄ£ÀºÀj¸À®Ä ¸ÀA§AzsÀ¥ÀlÖ C¢üPÁjUÀ½UÉ ¸ÀÆa¸ÀÄvÉÛÃªÉ.

2. ¨ÉAUÀ¼ÀÆgÀÄ, ªÉåAiÀiÁ°PÁªÀ¯ï, 2£ÉÃ ªÉÄå£ï, ªÀÄ£É £ÀA.10 ¸ÀévÀÄÛ £À£Àß ¥Àwß ²æÃªÀÄw ªÀÄAdÄ¼À gÀªÀgÀ ºÉ¸Àj£À°è ¢£ÁAPÀ:- 27/01/2010 jAzÀ EgÀÄvÀÛzÉ. D ªÀÄ£ÉAiÀÄ°è ºÁ° AiÀiÁgÀÆ ªÁ¸ÀªÁVgÀ°®è. D ªÀÄ£ÉAiÀÄ£ÀÄß RjÃ¢ ªÀiÁrzÁUÀ CzÀÄ ªÁ¸ÀAiÉÆÃUÀåªÁVgÀ°®è. ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß gÉrªÀiÁrPÉÆAqÀÄ £À£Àß ¸ÉßÃ»vÀgÁzÀ ²æÃ gÁªÀÄ¨Á§Ä @ ¸ÀÆgÀ¥Àà ¨Á§ÄgÀªÀgÀ ¹¤ªÀiÁ ¥ÉÆæqÀPÀë£ï ºÁUÀÆ r¹Öæ§ÆåµÀ£ï PÀbÉÃjUÉ ¤ÃrzÉÝ£ÀÄ.

3. ©.©.JA.¦. C¢üPÁgÀUÀ¼ÀÄ ¸ÀPÁðj PÀqÀvÀUÀ¼À£ÀÄß C¢üPÀÈvÀ PÀbÉÃj¬ÄAzÀ ºÉÆgÀUÀqÉ vÉUÉzÀÄPÉÆAqÀÄ §AzÀÄ £À£Àß ªÀÄ£ÉAiÀÄ°è

PÁAiÀÄð¤ªÀð»¸ÀÄwÛzÀÄÝzÀÄ ¸Àj CxÀªÁ vÀ¥ÀÄà J£ÀÄßªÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj ªÀÄ£ÉAiÀÄ°èzÀÝ PÀqÀvÀUÀ¼À ªÉÄÃ¯É £À£ÀUÉ AiÀiÁªÀÅzÉÃ ¤AiÀÄAvÀæt«gÀÄªÀÅ¢®è.

©.©.JA.¦. DAiÀÄÄPÀÛgÀÄ AiÀiÁªÀÄzÉÃ MAzÀÄ zÁR¯ÁwUÀ¼À ¥ÀæwUÀ¼À£ÀÄß ¤ÃqÀÄªÀAvÉ C¢üPÁjUÀ½UÉ ¸ÀÆZÀ£É ¤ÃrzÁUÀ ©.©.JA.¦.AiÀÄ EAf¤AiÀÄgï gÀªÀgÀÄ £À£Àß£ÀÄß C£ÀÄªÀÄw PÉÃ¼ÀÄªÀ CUÀvÀå«gÀÄªÀÅ¢®è. zÁR¯Áw ¤ÃqÀÄªÀ §UÉÎ CªÀgÉÃ PÀæªÀÄ vÉUÉzÀÄPÉÆ¼Àî§ºÀÄzÀÄ. J£ï.Dgï.gÀªÉÄÃ±ï gÁdQÃAiÀÄ £ÁAiÀÄPÀgÁVzÀÄÝ, ¥ÀzÉÃ-¥ÀzÉÃ gÁdgÁeÉÃ±Àéj£ÀUÀgÀ C¢üPÁjUÀ½UÉ vÉÆAzÀgÉ ¤ÃqÀÄwÛzÀÄÝzÀjAzÀ zÁR¯ÁwUÀ¼À£ÀÄß PÉÆqÀÄªÀ «ZÁgÀzÀ §UÉÎ JEE gÀªÀgÀÄ £À£ÉÆßA¢UÉ ªÀiÁvÀ£ÁrgÀÄvÁÛgÉ.

4. JQìPÀÄånªï EAf¤AiÀÄgï DzÀ ²æÃ EzÉAiÀÄ ªÉAqÀ£ï ºÁUÀÆ EvÀgÉ ºÀ®ªÁgÀÄ ©.©.JA.¥À. C¢üPÁjUÀ¼ÀÄ £Á£ÀÄ UÀÄwÛUÉzÁgÀ£ÁV PÁAiÀÄð¤ªÀð»¸ÀÄwÛzÁÝV¤AzÀ®Æ ¥ÀjavÀgÁVzÀÄÝ, ¥Àæ¸ÀÄÛvÀ EzÉAiÀÄ ªÉAqÀ£ï gÀªÀgÀÄ gÁdgÁeÉÃ±Àéj «zsÁ£À¸À¨Ás PÉëÃvÀæzÀ JQìPÀÄånªï EAf¤AiÀÄgï DV PÁAiÀÄð¤ªÁ»¸ÀÄwÛzÁÝgÉ. 5,6,7,8...(45)

5. ªÀÈµÀ¨sÁ¢æ PÀ£ÀìlæPÀë£ïì §UÉÎ w½¸À®Ä PÁ®ªÀPÁ±À ¤ÃqÀ¨ÉÃPÉAzÀÄ PÉÆÃgÀÄvÉÛÃ£É. £Á£ÀÄ UÀÄwÛUÉzÁgÀ£ÁVzÁÝUÀ £À£Àß ªÉåAiÀÄQÛPÀ ºÉ¸Àj£À°èAiÉÄÃ UÀÄwÛUÉ ¥ÀqÉzÀÄ £Á£ÀÄ PÁAiÀÄð¤ªÀð»¹gÀÄvÉÃÛ £É. ªÀÈµÀ¨sÁ¢æ PÀ£ÀìlæPÀë£ïì ¸ÉÃjzÀAvÉ C£ÉÃPÀ PÀ£ÀìlæPÀë£ï PÀ<¥À¤ ºÁUÀÆ UÀÄwÛUÉzÁgÀgÀÄ £À£ÀUÉ ¥ÀjZÀAiÀÄ«gÀÄvÁÛgÉ.

6. ¢£ÁAPÀ:-27/12/2014 gÀAzÀÄ ªÉÊAiÀÄ°PÁªÀ¯ï£À £À£Àß ¥ÀwßAiÀÄ ºÉ¸Àj£À ªÀÄ£ÉAiÀÄ ªÉÄÃ¯É ¯ÉÆÃPÁAiÀÄÄPÀÛ zÁ½ £ÀqÉzÀ ¸ÀAzsÀ¨sÀðzÀ°è dAiÀÄgÁªÀÄ, ¤ÃgÀeï ²æÃzsÀgï, gÁWÀªÉÃAzÀæ gÀªÀgÀÄ £À£ÀUÉ ¥ÀjavÀjgÀÄ§ºÀÄzÀÄ DzÀgÉ CªÀgÀÄ ¸ÀzÀj ªÀÄ£ÉAiÀÄ°è D ¢£À KPÉ C°è EzÀÝgÀÄ JA§ «ZÁgÀUÀ¼ÀÄ £À£ÀUÉ w½¢®è.

7. ¸ÀzÀj ¢£ÀzÀAzÀÄ ¯ÉÆÃPÁAiÀÄÄPÀÛ zÁ½ £ÀqÉ¹zÁUÀ D ªÀÄ£ÉAiÀÄ°è zÉÆgÉvÀ PÀA¥ÀÆålgïUÀ¼ÀÄ £À£Àß PÀbÉÃjUÉ ¸ÀA§A¢ü¹zÀÝªÀÅUÀ¼ÉÃ DVzÀÄÝ, EAf¤AiÀÄgï gÀªÀgÀÄ PÉÆÃjzÀ ªÉÄÃgÉUÉ CªÀÅUÀ¼À£ÀÄß G¥ÀAiÉÆÃV¸ÀPÉÆ¼Àî®Ä £Á£ÉÃ C£ÀÄªÀÄw ¤ÃrzÉÝ£ÀÄ.

8. £À£Àß ¥ÀwßAiÀÄ ºÉ¸Àj£À°è AiÀiÁªÀÅzÉÃ UÀÄwÛUÉ ¥ÀgÀªÁ¤UÉ EgÀÄªÀÅ¢®è ºÁUÀÆ EªÀgÀÄ AiÀiÁªÀÅzÉÃ PÁªÀÄUÁj PÉ®¸ÀUÀ¼À£ÀÄß ¤ªÀð»¹gÀÄªÀÅ¢®è. ªÀÈµÀ¨sÁ¢æ PÀ£ïìlæPÀë£ïUÉ ¸ÀA§AzsÀ¥ÀlÖ MAzÀÄ jf¸ÀÖgï ¯ÉÆÃPÁAiÀÄÄPÀÛ zÁ½ £ÀqÉzÀ ¸ÀAzsÀ¨sÀðzÀ°è ¸ÀzÀj ªÀÄ£ÉAiÀÄ°è ºÉÃUÉ zÉÆgÉ¬ÄvÉA§ §UÉÎ £À£ÀUÉ AiÀiÁªÀÅzÉÃ ªÀiÁ»w EgÀÄªÀÅ¢®è. ¸ÀzÀj jf¸ÀÖgÀß MAzÀÄ gÉhÄgÁPÉì ¥ÀæwAiÀÄ£ÀÄß £À£ÀUÉ ¤ÃrzÀgÉ, £Á£ÀÄ GvÀÛj¸ÀÄvÉÛÃ£É."

(b) Placing strained interpretation on the above

161-Statement, petitioner argues that the same should be

treated as confession which constitutes sufficient

evidentiary material for summoning them to face the trial;

this is too farfetched an argument; by no stretch of

imagination, it can be construed as an admission, much

less a confession; setting criminal law into motion, is a

serious matter, regard being had to its implications on the

rights & liberties of the private citizens vide PEPSI FOODS

LTD AND ANOTHER vs. SPECIAL JUDICIAL MAGISTRATE

& OTHERS, 1998 SCC (CRL) 1400; going by it's content,

the 161-Statement has absolutely nothing inculpatory qua

the private respondents; nothing has been brought to

notice of this court from the Statement of others recorded

by the police u/s 161 that would even remotely suggest

complicity of these respondents; even otherwise 161-

Statement per se may not be a sufficient material for

invoking section 319, to summon its maker as an accused,

especially when the material turned out in investigation

does not support the case of the petitioner.

respondent which the learned counsel for the petitioner

highlights also do not come to his aid; the relevant part of

the statement which he much banks upon is to the effect

that: the house in question belonged to third respondent

Smt.Manjula; she happens to be the wife of second

respondent; the said house was vacant; it was later

renovated; it was convenient for the work and the members

of the public had access thereto; after renovation the second

respondent on the request of BBMP officials permitted them

to use the house; it was for a short period during December

2014; there was undue & intermittent interference of the

local political leader Mr.N.R. Ramesh in the discharge of

duties by the BBMP officials; accused No.1 Mr.Ideyavendan

and other BBMP officials were known to second respondent

as he was a Class I Contractor since very long; petitioner

seeks to read some stray sentences in the Statement that

loosely suggest the association of this respondent with the

BBMP officials, as amounting to his complicity; since

centuries, the sages of law have always advised that

admissions must be clear if they are to be used against the

person making them; the first important rule with regard

to admission is, that the whole statement containing the so

called admission must be taken together since without the

whole, the true meaning of stray sentences cannot be

ascertained; going by this yardstick, there is nothing in

161-Statement to implicate the private respondents.

D. Scope & invocation of Sec.319 of the Code and what the Apex Court said in Hardeep Singh Case:

(a) The scope & applicability of sec.319 of the Code

are delineated in a catena of decisions; in HARDEEP

SINGH vs. STATE OF PUNJAB, (2014) 3 SCC 92, a

Constitution Bench of the Apex Court having surveyed the

entire law developed u/s.319 explained the scope & extent

of powers of the courts; it observed that : it is the duty of

the Court to do justice by punishing the real culprit; where

the investigating agency despite evidentiary material

gathered in the investigation does not array a prima facie

culpable person as an accused, the court can summon him

for trial; after the filing of the charge sheet the case reaches

the stage of enquiry and once the court frames the charges,

the trial commences, and therefore the power under this

section can be exercised at any time after the charge sheet

is filed and before the pronouncement of judgment, except

during the stage of committal, etc.; Mr. C.V.Nagesh, learned

Sr. Advocate appearing for the private respondents is more

than justified in stating that what is required for

summoning a person u/s. 319 for facing the trial is little

more than a prima facie case as contradistinguished from

some case vide BABUBHAI vs. GUJARAT, 2014 CrLJ 2290

(SC); he reasons out this by pointing out that it is the

statutory authorities like the police who undertake

investigation and therefore the presumption as to

regularity of discharge of official duties by the public

servants arises under law; he also points out that

ordinarily it is the investigating agency which decides on

the basis of investigated material, as to whom to set up for

trial and whom not to; he readily agrees that this is not a

Thumb Rule and some exceptions are recognized thereto,

such as the cases of abuse of investigatory power, malice

of the official concerned, etc; however, the argued case of

the petitioner does not fit into these exceptions.

(b) There is nothing in the 161-Statement heavily

banked upon by the petitioner for implicating the private

respondents; no other evidentiary material is shown from

the record of the case for summoning them to face the trial

by invoking section 319 of the Code; admittedly, none of

these respondents is named in the FIR; nor any other

person examined by the police u/s.161 of the Code has

stated even a single word about the complicity of these

respondents in the commission of the offences; from the

bulky prosecution papers, not even a leaf is shown to

contain the names of these persons; even the de facto

complainant Mr.Y.H. Srinivas who was examined as PW.1

and Mr.P.B. Nanjaiah who was examined as PW.2, in their

deposition have not whispered anything against these

respondents; the learned trial Judge after examining the

record of the case including Section 161-Statement of the

second respondent herein has chosen to frame charges

only against the accused; this court cannot run a race of

opinions with the judges of the court below in exercise of

inherent jurisdiction, which is sparingly undertaken; the

Apex Court in Hardeep supra at para 105 observed:

"Power u/s.319 of Cr.P.C. is a discretionary & extraordinary power. It is to be exercised sparingly in those cases were the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner".

and meticulously perusing is still at loss to know why the

petitioner seeks to arraign the third respondent Smt.

Manjula as accused; she happens to be the wife of second

respondent who had given the Statement u/s 161, is true;

except that the house in question belongs to her, there is

no other sentence in the Statement; no needle of suspicion

points to her nor to the respondent no.4, even if, in the

absence of material on record, it is assumed that, such a

needle points to the second respondent; that being the

position, the abortive effort on the part of the petitioner

justifiably raises a thick ring of doubt about the bona fide

in the petition; the effect of such absence of bona fide

pervades case of the petitioner.

E. Role of prosecution and rule of fairness to the accused; views of jurist Travers Christmas Humpreys, QC & Lord Avory; what Law Commission of India suggested:

(a) Learned counsel for the petitioner Mr. Pavan

Chandra Shetty vehemently argued that the subject

application of the petitioner could not have been opposed

by the Lokayukta police and that the said opposition does

not defeat the statutory institution of Lokayukta; he

further submits that the Lokayukta police are expected to

support the petition brought pro bono publico; learned Sr.

Panel Counsel Mr. Arabatti vehemently opposes the

submission of Mr. Shetty contending that there is no such

duty on his client; he places reliance on R. vs. BANKS,

1916(2) KB 621 wherein Avory.J., observed "...the

prosecutors throughout a case ought not to struggle for the

verdict against the prisoner but ... ought to bear themselves

rather in the character of minister of justice assisting the

administration of justice...";

(b) Learned Panel Counsel Mr. Arabatti also quotes

the following from Travers Christmas Humphreys [1955

Criminal Law Review 739 (740-741)]:

"The Prosecutor has a duty to the State, to the accused and to the Court. The Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success. Still less should be boast of the percentage of convictions secured over a period. The duty of the prosecutor, as I see it, is to present to the tribunal a precisely formulated case for the Crown against the accused, and to call evidence in support of it. If a defence is raised incompatible with his case, he will cross-examine dispassionately and with perfect fairness, the evidence so called, and then address the tribunal in reply, if he has the right to suggest that his case is proved. It is not rebuff to his prestige if he fails to convince the tribunal of the prisoner's guilt. His attitude should be so objective that he is, so far as humanly possible, indifferent to the result. It may be argued that it is for the tribunal alone, whether magistrate or jury, to decide guilt or innocence".

on Public Prosecutors Appointments, at page 12 heavily

relies upon what jurist Christmas Humpreys suggests; the

Commission also quotes the observations in BABU vs.

STATE OF KERALA, 1984 Crl.LJ 499 wherein the Hon'ble

Kerala High Court observed as under:

"Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction".

This court is in complete agreement with the fair

stand taken by the respondent - Lokayukta police through

its learned Panel Counsel and therefore reject the

contention of the counsel for the petitioner as being

thoroughly unworthy of acceptance.

In the above circumstances, this petition being

devoid of merits, is liable to be dismissed and accordingly

it is, costs having been made easy.

Sd/-

JUDGE

Snb/