Karnataka High Court
Sri Prabhu Shankar vs State Of Karnataka on 8 September, 2021
Author: H.P.Sandesh
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.2470/2020
C/W.
CRIMINAL PETITION NO.2473/2020
CRIMINAL PETITION NO.2485/2020
IN CRIMINAL PETITION NO.2470/2020:
BETWEEN:
SRI PRABHU SHANKAR
S/O MUNIYAPPA
AGED ABOUT 50 YEARS
ASST. COMMISSIONER OF POLICE
RESIDING AT NO.1160
17TH MAIN, 20TH CROSS
'A' BLOCK, SAHAKARANAGAR
BENGALURU-560 092. ... PETITIONER
(BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR
SMT.LEELA P.DEVADIGA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ANTI-CORRUPTION BUREAU
NO.49, KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU
KARNATAKA-560 001.
2. THE DEPUTY COMMISSIONER OF POLICE
CRIME-I, CITY CRIME BRANCH
BENGALURU CITY-560 009.
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3. SRI RAJENDRA DY.SP, ACB
NO.49, KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU
KARNATAKA-560 001. ... RESPONDENTS
(BY SRI MANMOHAN P.N, SPL.PP FOR R1 & R3;
SRI V.M.SHEELVANT, SPP-I FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE FIR NO.17/2020 DATED
21.05.2020 IN CRIME NO.17/2020 REGISTERED BY THE
RESPONDENT-ACB AND THE COMPLAINT DATED 21.05.2020
PRODUCED AT ANNEXURES-A AND B RESPECTIVELY AND ALL
FURTHER PROCEEDINGS PURSUANT THERETO.
IN CRIMINAL PETITION NO.2473/2020:
BETWEEN:
SRI PRABHU SHANKAR
S/O MUNIYAPPA
AGED ABOUT 50 YEARS
ASST. COMMISSIONER OF POLICE
RESIDING AT NO.1160
17TH MAIN, 20TH CROSS
'A' BLOCK, SAHAKARANAGAR
BENGALURU-560 092. ... PETITIONER
(BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR
SMT.LEELA P.DEVADIGA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ACB POLICE STATION
KHANIJA BHAVAN, RACE COURSE ROAD
BENGALURU CITY-560 001.
2. THE DEPUTY COMMISSIONER OF POLICE
CRIME-II, CITY CRIME BRANCH
BENGALURU CITY-560 009.
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3. SRI RAJENDRA DY.SP, ACB
ANTI CORRUPTION BUREAU
NO.49, KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU
KARNATAKA-560 001. ... RESPONDENTS
(BY SRI V.M.SHEELVANT, SPP-I FOR R2;
SRI P.N.MANMOHAN, SPL.PP FOR R1 & R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE FIR NO.15/2020 DATED
21.05.2020 IN CRIME NO.15/2020 REGISTERED BY THE
RESPONDENT - ACB AND THE COMPLAINT DATED 21.05.2020
PRODUCED AS ANNEXURES-A AND B RESPECTIVELY AND ALL
FURTHER PROCEEDINGS PURSUANT THERETO.
IN CRIMINAL PETITION NO.2485/2020:
BETWEEN:
SRI PRABHU SHANKAR
S/O MUNIYAPPA
AGED ABOUT 50 YEARS
ASST. COMMISSIONER OF POLICE
RESIDING AT NO.1160
17TH MAIN, 20TH CROSS
'A' BLOCK, SAHAKARANAGAR
BENGALURU-560 092. ... PETITIONER
(BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR
SMT.LEELA P.DEVADIGA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ANTI-CORRUPTION BUREAU
NO.49, KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU, KARNATAKA-560 001.
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2. THE DEPUTY COMMISSIONER OF POLICE
CRIME-I, CITY CRIME BRANCH
BENGALURU CITY-560 009.
3. SRI RAJENDRA DY.SP, ACB
NO.49, KHANIJA BHAVAN
RACE COURSE ROAD, BENGALURU
KARNATAKA-560 001. ... RESPONDENTS
(BY SRI V.M.SHEELVANT, SPP-I FOR R2;
SRI P.N.MANMOHAN, SPL. PP FOR R1 & R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE FIR NO.16/2020 DATED
21.05.2020 IN CRIME NO.16/2020 REGISTERED BY THE
RESPONDENT ACB AND THE COMPLAINT DATED 21.05.2020
PRODUCED AT ANNEXURES-A AND B RESPECTIVELY AND ALL
FURTHER PROCEEDINGS PURSUANT THERETO.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.07.2021 THROUGH 'VIDEO
CONFERENCE' THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Criminal Petition No.2470/2020, Criminal Petition
No.2473/2020 and Criminal Petition No.2485/2020, are filed by
the same accused for the same offences of different crimes in
Crime Nos.15/2020, 16/2020 and 17/2020, on the file of 23rd
Additional City Civil & Sessions Judge, Bengaluru City. Hence, all
the petitions are taken up together for common disposal.
2. The factual matrix of the case in Crl.P.No.2470/2020
is that the petitioner was working as an Assistant Commissioner
of Police in Central Crime Branch ('CCB'), Bengaluru City, and he
was a supervisory officer of the Economic Offences Wing in the
CCB. That on 30.03.2020, a complaint came to be filed and
registered by the Banaswadi Police Station as against one
Surush and others for an offence punishable under Section 420
of IPC, making the allegation that manufacturing of masks in the
Lab of the accused, situated in Banaswadi and the said masks
containing the fake seals and certification to provide
standardization for the masks manufactured by him. The said
crime, which is numbered as Crime No.164/2020 and the same
was transferred to CCB, by the Commissioner of Police,
Bengaluru City, and one Shri Guruprasad, Police Inspector was
appointed as the Investigating Officer. The CCB, accordingly,
commenced their investigation. When the things stood thus, it
appears that on 11.05.2020, the Joint Commissioner of Police -
Crime-I, who is the head of the CCB, has addressed a letter to
the second respondent that the petitioner and another Police
Inspector Shri R.M.Ajay, have obtained money to close the case
in Crime No.164/2020.
3. Based on the said order, the third respondent herein
has enquired the matter by recording the statement on
12.05.2020. Based on the statement made by the third
respondent, the second respondent addressed a letter on the
very same day to the first respondent - police taking action
against the petitioner and the Inspector of Police Shri R.M.Ajay.
The first respondent based on the letter and the statement of the
third respondent, have proceeded to register an FIR against the
petitioner and the Police Inspector Shri R.M. Ajay in Crime
No.64/2020 for the offences punishable under Sections 384 read
with Section 34 of IPC.
4. It is contended that when matters stood thus, the
first respondent - ACB has registered an FIR in Crime
No.17/2020 dated 21.05.2010 in respect of the same incident for
the offences punishable under Sections 7A, 13(1)(a) read with
Section 13 (2) of the Prevention of Corruption Act, 1988 ('the PC
Act' for short). The said FIR - Annexure 'A' is registered on the
basis of a request made by the Deputy Superintendent of Police,
ACB to the 23rd Additional City Civil & Sessions Judge,
Bengaluru. The said request made to the Court referring the
various communications addressed by the Senior Police Officers,
such as, Director General and Inspector General-Karnataka,
Additional Director General of Police - ACB, Commissioner of
Police, Bengaluru City etc., and a request to the Court to permit
to carry out investigation into Crime No.17/2020 for the
aforesaid offences under the PC Act. A copy of the FIR in Crime
No.17/2020 registered by respondent - ACB dated 21.05.2020
and the complaint dated 21.05.2020 are produced as Annexures
'A' and 'B'.
5. It is also contended that in an identical fashion on
06.05.2020, the Joint Commissioner of Police had issued a
letter/direction to the Deputy Commissioner of Police, Crime-I,
to conduct an enquiry against the petitioner, with regard to
another case in Crime No.167/2020 registered in Banasawadi
Police Station with regard to illegal sale of cigarettes. Based on
the said order, the Deputy Commissioner of Police, who
conducted an enquiry and in an identical fashion recorded the
statement of the accused person in that crime and writes a letter
dated 12.05.2020, to the very same police, the first respondent
herein, annexing the statement recorded by him in the course of
his so called enquiry and the first respondent-police have
registered another case against the petitioner and other
inspector in Crime No.63/2020 for the offences punishable under
Sections 384 read with Section 34 of IPC.
6. In Crl.P.No.2473/2020, the petitioner is challenging
to quash of FIR No.15/2020 dated 21.05.2020 for the offences
punishable under Sections 7A, 13(1)(a) read with Section 13 (2)
of the PC Act on the file of 23rd Additional City Civil & Sessions
Judge, Bengaluru City, wherein, an allegation is made against
this petitioner that already a case has been registered against
this petitioner in Crime No.63/2020 for the offences punishable
under Section 384 read with Section 34 of IPC on the file of
Cottonpet Police Station. Apart from that, a case has been
registered against this petitioner for the offences punishable
under Sections 7A, 13(1)(a) read with Section 13 (2) of the PC
Act. An FIR is registered on the basis of the request made by the
Deputy Superintendent of Police, ACB, to the 23rd Additional City
Civil & Sessions Judge, Bengaluru City. A case is registered
against this petitioner that he indulged in taking the money from
one Adil Azeez for illegal sale of cigarettes in Bengaluru City.
The said FIR is produced at Annexure 'A' and a complaint is at
Annexure 'B'.
7. In Crl.P.No.2485/2020, an allegation made against
this petitioner is that on 09.05.2020, DCP Crime-II recorded the
statement of Santosh s/o Babu Lal, wherein, he has stated that
he is the distributor to sell cigarettes at Hanumanthanagara in
the name and style of 'Mahaveer Trading Company'. That on
25.04.2020, the CCB Police came to his shop and got locked the
godown and took him to this petitioner and other two CCB
officers told him to come on the next day and took the key and
mobile into their custody. That on 27.04.2020, they went and
met this petitioner and questioned him that he is illegally selling
the cigarettes and also threatened him by saying that he would
send him to jail. On the instructions of this petitioner, demanded
Rs.30 Lakhs, but he agreed to pay Rs.1 Lakh. Thereafter, he had
taken to this petitioner and they demanded Rs.30 Lakhs and told
him to settle the issue with Babu Rajendra Prasad, President of
Yelahanka Town. He went and spoke to him. He also demanded
him for Rs.30 Lakhs and it was negotiated over the phone and
settled the same for Rs.15 Lakhs. He gave the money to the
said Babu Rajendra Prasad. Thereafter, he went and informed to
this petitioner that he made the payment to Babu Rajendra
Prasad and asked them to return the key and mobile. In the
request made to the Court stated that this petitioner has
received an amount of Rs.15 Lakhs and prima facie found that
he had received the money. Hence, a request was made to the
Court to register a case.
8. In Crl.P.No.2470/2020, vide Annexure 'B', an
allegation is made against this petitioner that a case has been
registered in Crime No.164/2020 for an offence punishable under
Section 420 of IPC. Hence, one Amzad called Shri Shaji George
Thomas and requested him to help in the matter. The said Shaji
George Thomas was having acquaintance with the Inspector
Ajay. When he approached the Ajay, the said Ajay in his
whatsapp told him to pay an amount of Rs.25 Lakhs to this
petitioner. Accordingly, the amount was paid to the Inspector
Ajay. This petitioner was indulged in taking the illegal money to
help him to the said Surush and in the preliminary enquiry found
the prima facie material against the petitioner and in terms of
Annexure 'B' request was made to the 23rd Additional City Civil &
Sessions Judge, Bengaluru City, to register a case and
investigate the matter.
9. In Crl.P.No.2473/2020, vide Annexure 'B', an
allegation made against this petitioner is that in the letter
addressed to the Court requesting to register the case in
K.R.Puram Police Station and have registered a case in Crime
No.167/2020 and this petitioner was supervising the same and
indulged in helping the persons, who are indulged in illegally
selling the cigarettes in the market during the lockdown period.
The allegation against this petitioner is that from the distributors
an amount of Rs.70 lakhs was collected by one Adil Azeez and he
entrusted the amount to one Rajendra Prasad and in turn the
said Rajendra Prasad handed over Rs.30 Lakhs each to Bhushan
to hand over the amount to this petitioner. Accordingly, he
handed over the money. Hence, an allegation against this
petitioner is that he indulged in taking the money illegally and
out of Rs.60 Lakhs, Rs.25 lakhs is recovered from this petitioner.
It is requested to register the case against this petitioner and
also other two inspectors.
10. The first contention of the learned counsel is that in
criminal proceedings or setting the criminal law into motion in
terms of the provisions of the Criminal Procedure Code was
contemplated under the provisions of Sections 154 or Section
200 of Cr.P.C. The present instance is a very peculiar case,
which does not fall within the required parameters or criteria
either under Section 154 of Cr.P.C., or Section 200 of Cr.P.C. In
the present case, the Deputy Superintendent of Police, ACB,
who makes a request for investigation of a complaint as against
the petitioner and others to the Court, is not in receipt of any
information or complaint with regard to commission of a
cognizable offence. Very strangely, an FIR is registered on the
basis and the request made to the learned Sessions Judge by the
very same person, who has made the request. Therefore, the
Officer-in-Charge of the Police Station who has registered an FIR
is himself the person who makes a request to the Court to carry
out investigation into a complaint against the petitioner and
others. The complaint or information available before the
Officer-in-Charge of the Police Station containing such material
for the Officer to reasonably believe commission of a cognizable
offence which is sine qua non in terms of Section 154 of Cr.P.C.,
for commencement of criminal proceedings is patently absent in
the present case. An FIR is registered on the basis of a request
made by the Officer-in-Charge of a Police Station to the Sessions
Court seeking permission to investigate the case.
11. The learned counsel for the petitioner in all the
petitions would vehemently contend that two cases already
registered against this petitioner in connection with Cottonpet
Crime No.63/2020 and another case in Crime No.64/2020 and
an investigation was also going on. Apart from that, two cases
have been registered i.e., Crime No.17/2020 and 15/2020 in
respect of the same incident and other Crime No.16/2020, is
registered for the offences punishable under Sections 7A,
13(1)(a) read with Section 13 (2) of the PC Act in all three
cases.
12. The said cases are registered at the request made by
the Deputy Superintendent of Police, ACB to the 23rd Additional
City Civil & Sessions Judge, Bengaluru City. The said request
made to the Court refers to various communications. The
learned counsel would vehemently contend that any complaint or
intimation is given to the respondent - Police with regard to
commission of a cognizable offence then police can register the
case if cognizable offence is found. Very strangely, the FIR is
registered on the basis and also on the request made to the
sessions Court. Therefore, the Officer-in-Charge of the Police
Station who made the request to the Court himself has
registered a case against this petitioner and it amounts to a
prejudice to this petitioner. An FIR is registered based on the
request made by the Officer-in-Charge of a Police Station to the
Court. The procedure adopted by the respondents in making a
request to the Court and on the basis of the request to
registering a case is unknown to the criminal jurisprudence and
the same is in gross violation of Section 154 and Section 200 of
Cr.P.C.
13. The learned counsel would vehemently contend that
there is no demand and acceptance in order to invoke Sections
7A, 13(1)(a) read with Section 13 (2) of the PC Act. Hence,
question of invoking those penal provisions against the petitioner
is nothing but an abuse of process.
14. The learned counsel also would vehemently contend
that the criminal prosecution is evident from the records and the
same is manifest with malafides and the entire proceedings are
maliciously instituted with ulterior motive for wreaking
vengeance.
15. The learned counsel also vehemently contends that
registration of a separate case under the PC Act amounts to a
second FIR, which is not permissible under law since already first
FIR are registered. In order to invoke the penal provision under
the PC Act, the information available before the Officer-in-
Chartge of the Police Station, must disclose the commission of a
cognizable offence. In the event, there is no material available
on the basis of the information Officer-in-Charge of a Police
Station to reasonably believe that a cognizable offence discloses
that an FIR cannot be registered and the criminal law cannot be
set in motion. The fundamental requirement discloses the
offence under the PC Act. There is no demand and acceptance
or misappropriation or conversion for his own use in property
entrusted to him. Hence, there cannot be any criminal
prosecution against this petitioner under the PC Act.
16. The learned counsel for the petitioner in support of
his arguments relied upon the judgment of the Apex Court in the
case of State of Haryana and others v. Bhajan Lal and
others reported in 1992 Supp (1) SCC 335, invoking Section
482 of Cr.P.C. The learned counsel in support of his arguments
would vehemently contend that this case is aptly applicable to
the case on hand, wherein, in order to wreak vengeance only a
case has been registered against this petitioner.
17. The learned counsel in support of his arguments also
relied upon the judgment of the Apex Court in the case of
T.T.Antony v. State of Kerala and others reported in (2001)
6 SCC 181, and brought to the notice of this Court paragraph
Nos.18 to 20, wherein, the Apex Court held that, an information
given under sub-section (1) of Section 154 of Cr.P.C., is
commonly known as First Information Report (FIR) though this
term is not used in the Code. It sets the criminal law in motion
on the information and the same has to be entered in the Station
House Diary and the same is implied in Section 154 of Cr.P.C.
The scheme of Cr.P.C., is that an officer in charge of a Police
Station has to commence investigation as provided under
Section 156 or 157 Cr.P.C., on the basis of entry of the First
Information Report. It is also clear that the scheme of the
provisions of Sections 154, 155, 156, 157, 162, 169, 170 and
173 Cr.P.C., only the earliest or the first information in regard to
the commission of a cognizable offence satisfies the
requirements of Section 154 Cr.P.C. Thus, there can be no
second FIR and consequently there can be no fresh investigation
on receipt of every subsequent information in respect of the
same cognizable offence or the same occurrence or incident
giving rise to one or more cognizable offences. On receipt of
information about a cognizable offence or an incident giving rise
to a cognizable offence or offences and on entering the FIR in
the station house diary, the officer in charge of a police station
has to investigate not merely the cognizable offence reported in
the FIR but also other connected offences found to have been
committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in Section
173 Cr.P.C. The learned counsel while referring to this judgment
would vehemently contend that the second FIR is registered
against this petitioner since already a case has been registered
against the petitioner in respect of the same incident and the
same is illegal and there cannot be two FIRs in respect of the
same incident.
18. The learned counsel also relied upon the judgment of
the Apex Court in the case of Babubhai v. State of Gujarat
and others reported in (2010) 12 SCC 254, and referring to
this judgment, the learned counsel would submit that the Apex
Court discussed Sections 154, 161 and 162 Cr.P.C. permissibility
of more than one FIR. Two FIRs in respect of same transaction
and that subsequent to registration of an FIR, any further
complaint in connection with the same or connected offence
relating to the same incident or incidents, which are parts of the
same transaction, is not permissible.
19. The learned counsel while referring to paragraph
No.14 would contend that, there can be no second FIR and no
fresh investigation on receipt of every subsequent information in
respect of the same cognizable offence or same occurrence
giving rise to one or more cognizable offences. The Apex Court
held in this judgment that the investigating agency has to
proceed only on the information about commission of a
cognizable offence which is first entered in the police station
diary by the officer-in-charge under Section 158 of the Code of
Criminal Procedure, 1973 and all other subsequent information
would be covered by Section 162 Cr.P.C., for the reason that it is
the duty of the investigating officer not merely to investigate the
cognizable offence reported in the FIR but also other connected
offences found to have been committed in the course of the
same transaction or the same occurrence and the investigating
officer has to file one or more reports under Section 173 Cr.P.C.
20. The learned counsel in support of his contention with
regard to the delay is concerned; he relied upon the judgment of
the Apex Court in the case of Thulia Kali v. The State of Tamil
Nadu reported in (1972) 3 SCC 393, and brought to the notice
of this Court paragraph No.12, wherein, the Apex Court held that
the first information report in a criminal case is an extremely
vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the trial. The
importance of the above report can hardly be overestimated
from the standpoint of the accused. The object of insisting upon
prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding
the circumstances in which the crime was committed, the names
of the actual culprits and the part played by them as well as the
names of eye-witnesses present at the scene of occurrence.
Delay in lodging the first information report quite often results in
embellishment which is a creature of after-thought. On account
of delay, the report not only gets bereft of the advantage of
spontaneity, danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of
deliberation and consultation. It is, therefore, essential that the
delay in the lodging of the first information report should be
satisfactorily explained.
21. The learned counsel also brought to the notice of this
Court the principles laid down in Bhajan Lal's case (supra), in
paragraph No.102 of the judgment with regard to registration of
the case manifestly with malafide intention in order to wreak
vengeance.
22. The learned counsel would vehemently contend that
the demand and acceptance is the sine qua non for the offences
under Sections 7 and 13 of the PC Act and the same is missing
in the case on hand i.e., no demand and no acceptance and no
recovery at the instance of the petitioner.
23. The learned counsel in support of his contention, he
relied upon the judgment of the Apex Court in the case of
P.Satyanarayana Murthy v. District Inspector of Police,
State of Andhra Pradesh and another reported in (2015) 10
SCC 152, and brought to the notice of this Court paragraph
Nos.13 to 27, wherein, the Apex Court held that in order to
convict an accused for the offence under the PC Act proof of
demand, the evidence of other witnesses is not sufficient to
prove demand, though recovery proved. The Apex Court in
paragraph No.19 discussed the very proviso of Sections 7 and 13
of the PC Act while coming to such a conclusion that all should
be corroborated proving beyond demand.
24. The learned counsel also relied upon the judgment of
the Apex Court reported in the case of Dashrath Singh
Chauhan v. Central Bureau of Investigation reported in
2018 SCC OnLine SC 1841, wherein, the Apex Court in
paragraph Nos.19 and 20 held that, the basic requirements in
such a case, namely, proving of "demand of bribe and its
acceptance by the appellant", the same has to be proved beyond
reasonable doubt. The demand and acceptance are the sine qua
non for initiating the proceedings against the petitioner for the
offences under Sections 7A, 13(1)(a) read with Section 13 (2) of
the PC Act.
25. The learned counsel referring to the above
judgments would vehemently contend that it is not in dispute
that the second FIR has been registered with a malafide
intention, there was a delay in registration of the case and also
to overcome the interim order passed by this Court, other cases
are registered. There is no complaint but an FIR is registered by
the Dy.S.P., based on the requisition made to the Court and no
complaint at all. Apart from that, there is no demand and
acceptance, which is sine qua non for proceed against the
accused for the offence under the PC Act. Though in the FIR, it
is mentioned that the complaint is enclosed, no such complaint
at all except requisition made to the Court. Hence, it requires an
interference of this Court or otherwise it amounts to an abuse of
process, which leads to miscarriage of justice.
26. The learned counsel for respondent Nos.1 and 3
would vehemently contend that column No.4 of Annexure-A FIR,
clearly discloses the place where the incident was taken place
and request was made to the Court permitting the Investigating
Officer to register the case and investigate the matter. No
doubt, there is no complaint as mentioned in column No.9 of the
FIR, but a detailed request was made to the Court and case has
been registered. The initiation of these cases are not second FIR
as contended by the petitioner and the offences are distinct. In
the first complaint, case has been registered for the offence
punishable under Section 384 read with Section 34 of IPC and
the second FIR is not for the same offences. The source of
information is also different and the incident is also different and
hence it cannot be contended that the cases registered are
second FIRs. There is no legal bar to register the case and on
that ground and not to scuttle the investigation. In the other
crimes, particularly in ACB Crime No.15/2020, 15/2020 no doubt
the crime has been registered in respect of the same incident in
Crime Nos.63/2020 and 64/2020 by Cottonpet police and
Annexure-A clearly discloses that incident was taken place at
Yelahanka and the main contention is that the second FIR is
registered and the same is not proved.
27. Crl.P.No.2485/2020 is in respect of Hanumanthnagar
jurisdiction wherein illegal cigarettes are sold and collected an
amount of Rs.15,00,000/-, but no second FIR with regard to this
case and only the first FIR is registered in respect of this
incident. The petitioner is not entitled for the relief under Section
482 of Cr.P.C.
28. The learned counsel in support of his arguments
relied upon several judgments, particularly in respect of the very
contention that the Court cannot exercise the powers under
Section 482 of Cr.P.C., relied upon the judgment of the Apex
Court in the case of STATE OF BIHAR AND ANOTHER v. P.P.
SHARMA, IAS AND ANOTHER reported in 1992 Supp (1)
SCC 222. The learned counsel referring this judgment brought
to the notice of this Court paragraph Nos.45 to 48, 59 and 68.
In paragraph Nos.45 to 48, the Apex Court has discussed
regarding the Code demarcates the field of investigation
exclusively to the executive to be vigilant over law and order.
The Police Officer has statutory power and right as a part to
investigate the cognizable offence suspected to have been
committed by an accused and bring the offender to book. The
Investigating Officer is the arm of the law and plays pivotal role
in the dispensation of criminal justice and maintenance of law
and order. It is by his action that law becomes an actual
positive force. It is also observed that the Investigating Officer
would conduct in-depth investigation to discover truth while
keeping in view the individual liberty with due observance of law.
It is also observed that it is never his business to fabricate the
evidence to connect the suspect with the commission of the
crime. The Apex Court in paragraph No.59 has held that malice
in law could be inferred from doing of wrongful act intentionally
without any just cause or excuse or without there being
reasonable relation to the purpose of the exercise of statutory
power. The learned counsel also brought to the notice of this
Court paragraph No.68 wherein with regard to exercising of
power under Article 226 of the Constitution of India, an
observation is made that quashing the charge-sheet even before
cognizance is taken by a criminal court amounts to "killing a
stillborn child". Till the criminal Court takes cognizance of the
offence there is no criminal proceedings pending.
29. The learned counsel also relied upon the judgment of
the Apex Court in the case of P. CHIDAMBARAM v.
DIRECTORATE OF ENFORCEMENT reported in (2019) 9 SCC
24 and brought to the notice of this Court paragraph Nos.64 to
66 wherein the Apex Court relied upon the judgment of State of
Bihar v. P.P. Sharma in paragraph No.64 and in paragraph No.66
held that it is not the function of the Court to monitor the
investigation process so long as the investigation does not
violate any provision of law. It must be left to the discretion of
the investigating agency to decide the course of investigation. If
the Court is to interfere in each and every stage of the
investigation and the interrogation of the accused, it would affect
the normal course of investigation.
30. The learned counsel also relied upon the judgment of
the Apex Court in the case of DINESHBHAI CHANDUBHAI
PATEL v. STATE OF GUJARAT AND OTHERS reported in
(2018) 3 SCC 104, wherein the Apex Court held that the High
Court has the inherent powers under Section 482 of Cr.P.C. and
while exercising the said power, in context of challenge to FIR
the principles was summarized and held that question is required
to be examined, keeping in view, the contents of FIR and prima
facie material, if any, requiring no proof.
31. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE OF ORISSA AND
ANOTHER v. SAROJ KUMAR SAHOO reported in (2005) 13
SCC 540 and referred paragraph No.11 of the judgment wherein
the Apex Court held that while invoking Section 482 of Cr.P.C.,
the Court must be careful to see that its decision in exercise of
this power is based on sound principles. The inherent power
should not be exercised to stifle a legitimate prosecution. The
High Court being the highest Court of a State should normally
refrain from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the evidence
has not been collected and produced before the Court and the
issues involved, whether factual or legal, are of magnitude and
cannot be seen in their true perspective without sufficient
material. Of course, no hard and fast rule can be laid down in
regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any
stage.
32. The learned counsel also relied upon the Apex Court
judgment in the case of STATE OF ORISSA AND OTHERS v.
UJJAL KUMAR BURDHAN reported in (2012) 4 SCC 547 and
brought to the notice of this Court paragraph No.11, wherein
with regard to exercising the power under Section 482 of
Cr.P.C., the Apex Court held that the preliminary inquiry was yet
to commence and an FIR was yet to be lodged. In the first
instance, the High Court stayed the preliminary inquiry by an
interim order in the writ petition, and then by the impugned
judgment quashed the same. It goes without saying that
commencement and completion of an investigation is necessary
to test the veracity of the alleged commission of an offence. Any
kind of hindrance or obstruction of the process of law from
taking its normal course, without any supervening
circumstances, in a casual manner, merely on the whims and
fancy of the court tantamounts to miscarriage of justice.
33. The learned counsel also relied upon the judgment of
the Apex Court in the case of TEEJA DEVI ALIAS TRIZA DEVI
v. STATE OF RAJASTHAN AND OTHERS reported in (2014)
15 SCC 221 and brought to the notice of this Court paragraph
No.5, wherein the Apex Court has held that ordinarily power
under Section 482 of Cr.P.C. should not be used to quash an FIR
because that amounts to interfering with the statutory power of
the police to investigate a cognizable offence in accordance with
the provisions of Cr.P.C. As per law settled by a catena of
judgments, if the allegations made in the FIR prima facie
disclose a cognizable offence, interference with the investigation
is not proper.
34. The learned counsel also relied upon the judgment of
the Apex Court in the case of VARSHABEN KANTILAL PURANI
v. STATE OF GUJARAT AND OTHERS reported in (2019) 11
SCC 774 and brought to the notice of this Court paragraph No.4
of the judgment, wherein the Apex Court has observed that the
second FIR/subsequent FIR is permissible where the conspiracy
discovered later is found to cover a much larger canvas with
broader ramifications and it cannot be equated with the earlier
conspiracy which covered a smaller field of narrower dimensions.
35. The learned counsel also relied upon the judgment of
the Apex Court in the case of ANJU CHAUDHARY v. STATE OF
UTTAR PRADESH AND ANOTHER reported in (2013) 6 SCC
384 and brought to the notice of this Court paragraph Nos.14,
23 and 24. The Apex Court in paragraph No.14 discussed with
regard to Section 154 of Cr.P.C. and filing of the report under
Section 173 of Code wherein it is held that it is appropriate to
follow the settled principle that there cannot be two FIRs
registered for the same offence. However, where the incident is
separate; offences are similar or different, or even where the
subsequent crime is of such magnitude that it does not fall
within the ambit and scope of the FIR recorded first, then a
second FIR could be registered. The most important aspect is to
examine the inbuilt safeguards provided by the legislature in the
very language of Section 154 of the Code. These safeguards can
be safely deduced from the principle akin to double jeopardy,
rule of fair investigation and further to prevent abuse of power
by the investigating authority of the police. The Apex Court in
paragraph No.23 held that it was not impermissible in law to
treat the subsequent information report as the first information
report and act thereupon. The Court applied the test of full
consideration of the complaints on merits.
36. The learned counsel also relied upon the judgment of
the Apex Court in the case of K. KRISHNA v. STATE OF
KARNATAKA reported in (1999) 3 SCC 247 and brought to the
notice of this Court paragraph No.5 of the judgment wherein it is
held that we do not find any provision in the Code which debars
the filing of an FIR and investigating into the alleged offences
merely because for an earlier period, there was a first
information report which was duly investigated into and
culminated in a 'B' Form which was accepted by a competent
court.
37. The learned counsel also relied upon the judgment of
the Apex Court in the case of NIRMAL SINGH KAHLON v.
STATE OF PUNJAB AND OTHERS reported in (2009) 1 SCC
441 and brought to the notice of this Court paragraph No.67 of
the judgment wherein it is held that the second FIR would be
maintainable not only because there were different versions but
when new discovery is made on factual foundations. If the
police authorities did not make a fair investigation and left out
conspiracy aspect of the matter from the purview of its
investigation, second FIR is maintainable.
38. The learned counsel also relied upon the judgment of
the Apex Court in the case of SHIVSHANKAR SINGH v. STATE
OF BIHAR AND ANOTHER reported in (2012) 1 SCC 130 and
brought to the notice of this Court paragraph No.18, wherein it is
held that the law does not prohibit filing or entertaining of the
second complaint even on the same facts provided the earlier
complaint has been decided on the basis of insufficient material
or the order has been passed without understanding the nature
of the complaint or the complete facts could not be placed before
the Court.
39. The learned counsel also relied upon the judgment of
the Apex Court in the case of A.R. ANTULAY v. RAMDAS
SRINIWAS NAYAK AND ANOTHER reported in (1984) 2 SCC
500 and brought to the notice of this Court paragraph No.6
wherein the Apex Court held with regard to the scheme of
Cr.P.C. envisages two parallel and independent agencies for
taking criminal offences to Court. The counsel also produced
mahazars and statement of witnesses in all the Crime in support
of their contentions.
40. Having heard the learned counsel for the petitioner
and the learned counsel for the respondents and also the
principles laid down in the judgments referred supra, this Court
has to analyse the material available on record to come to a
right conclusion whether it is an abuse of process in order to
wreck vengeance or a fit case to proceed against the petitioner
herein.
41. Before considering the material available on record,
it is appropriate to consider the penal provisions invoked against
the petitioner herein in terms of Annexure-A FIR. The
respondents have invoked Sections 7A, 13(1)(a) read with
Section 13(2) of the Prevention of Corruption Act, 1988 in view
of the amendment effected to the Prevention of Corruption
(Amendment) Act, 2018. The penal provisions reads as follows:
"7A. Taking undue advantage to influence
public servant by corrupt or illegal means or by
exercise of personal influence.- Whoever accepts
or obtains or attempts to obtain from another person
for himself or for any other person any undue
advantage as a motive or reward to induce a public
servant, by corrupt or illegal means or by exercise of
his personal influence to perform or to cause
performance of a public duty improperly or
dishonestly or to forbear or to cause to forbear such
public duty by such public servant or by another
servant, shall be punishable with imprisonment for a
term which shall not be less than three years but
which may extend to seven years and shall also be
liable to fine.
13. Criminal misconduct by a public
servant.-- (1) A public servant is said to commit the
offence of criminal misconduct,--
(a) if he dishonestly or fraudulently
misappropriates or otherwise converts for his own
use any property entrusted to him or any property
under his control as a public servant or allows any
other person so to do;
(b) xxxxxxxxxxx
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment
for a term which shall be not less than four years
but which may extend to ten years and shall also be
liable to fine.
42. Keeping in view these penal provisions, this Court
has to look into the material available on record. On perusal of
Annexure-A FIR in column No.5, the complainant's name is
mentioned as Sri Rajendra, who is respondent No.3 herein.
Having perused column No.9 of the FIR, a request is made to the
XXIII Additional City Civil and Sessions Judge, Bengaluru and the
said request is also made by the very complainant stating
demanded an amount of Rs.30,00,000/-. In the very same
column, it is mentioned that separate complaint is enclosed and
also mentioned the Government Order dated 19.05.2020. In
column No.10, it is mentioned that the very same officer
registered the case and taken up the further investigation.
43. The main contention of the petitioner before this
Court is that these FIRs are the second FIRs and earlier also in
respect of the very same incident, other cases have been
registered in Crime Nos.63/2020 and 64/2020. The other FIRs,
which have been annexed pertaining to other cases in column
Nos.5 and 9 and 10 is one and the same. The respondents are
also not disputing that this is a second FIR in respect of the very
same incidents but contention that destined offences. No doubt,
the respective counsels have relied upon the citations referred
supra and the citations quoted by the learned counsel for the
petitioner held that second FIR is not permissible on subsequent
information but can file number of report. It is settled law that
there cannot be two FIRs' in respect of the same incident. But
no doubt the learned counsel for the respondents relied upon the
Apex Court judgment in the case of Varshaben Kantilal Purani
(supra), wherein it is held that second FIR is permissible where
the criminal conspiracy is discovered later but in the case on
hand, conspiracy not discovered, no criminal conspiracy offence
has been invoked. In Anju Chaudhary (supra) case also held
that where the incident are separate, offences are different,
crime is such magnitude, then second FIR could be registered.
But in the case on hand, incident is same, no subsequent crime
is different, had the knowledge at the time of registration of first
FIR and subsequent discovery as held in the judgment in the
case of Nirmal Singh Kahlon case. Under the circumstances,
the principles laid down in the judgment referred by the learned
counsel for the respondents is not applicable to the facts of the
case on hand. Having perused the request contents in these
cases, the other two cases registered are in respect of the same
incident. It is also important to note that there is a delay in
registration of the case. In terms of Annexure-A FIR, the date of
incident is 25.04.2020 in Crl.P.No.2485/2020. On perusal of FIR
in Crl.P.No.2473/2020, the occurrence of the offence is dated
from 20.04.2020 to 08.05.2020. In Crl.P.No.2470/2020
Annexure-A FIR discloses the date as 30.03.2020. In respect of
two cases, two FIRs are on record and admittedly the FIRs are
second FIRs and hence the judgment of the Apex Court in the
case of Thulia Kali (supra), is apply applicable that the
subsequent FIRs' are creative and after thought, danger creeps
in the introduction of coloured version, exaggerated account or
concocted stay as a request of deliberation and consultation. The
delay in registration of cases shrouded with suspicion.
44. It is important to note that in these petitions first of
all there is no complaint, as contended by the learned counsel
for the petitioner. But the case is registered by respondent No.3
Dy.S.P., who is the complainant and he himself requested the
XXIII Additional City Civil and Sessions Judge, Bengaluru and
based on the said requisition made to the Court, case has been
registered. The aggrieved persons have not given any complaint
with regard to demand and acceptance and the same is only
registered by respondent No.3. The Apex Court in the judgment
in the cases of Dashrath Singh Chauhan and
P.Satyanarayana Murthy (supra), categorically held that the
demand and acceptance sine qua non for initiating the
proceedings under Section 7(a) and 13(a) of the P.C. Act and the
same is missing in the case on hand except the requisition by
the Investigating Officer. It is also important to note that this
Court granted stay in respect of earlier cases registered for the
offence punishable under Section 384 of IPC and subsequently
these two cases are registered. It is the contention of the
learned counsel for the petitioner that to overcome the interim
orders granted by this Court earlier the cases have been
registered. It is important to note that there is a delay in
registering of the case and I have already pointed out that the
incidents have been mentioned in the month of March and April,
but the cases have been registered in the month of May 2020.
No doubt, the principles laid down by the judgment referred by
the learned counsel for the respondents in the case of P.P.
Sharma (supra), the Apex Court has held that if the Court
entertain the 482 petition for quashing of the registration of the
FIR, the same amounts to killing a stillborn child born and at the
same time it has to be noted that the said child should be born
legally and not by creating documents with malice intention if a
person is booked it amounts to illegitimate child. No doubt, the
Investigating Officer should be allowed to unearth the crime as
held in the case of Dineshbhai Chandubhai Patel (supra), but
complaint should disclose the cognizable offence. But in the case
on hand, no complaint at all except the requisition of the
Investigating Officer and the child is born at the hands of the
Investigating Officer with malafide intention. If the complaint is
manifest of malafide intention, the Court has to take note of the
same. The criminal prosecution must be without any manifest of
malafides and if it is based on the malafides, the Court can
exercise the power under Section 482 of Cr.P.C.
45. I have already pointed out that two cases are
registered and the same amounts to second FIR since no
complaint for second FIR and earlier case has been registered for
the offence punishable under Section 384 of IPC. No doubt, the
learned counsel for the respondents would contend that both the
offences are distinct and in the earlier complaint IPC offences are
invoked and in these proceedings Prevention of Corruption Act
offences are invoked. I have already pointed out that in these
cases, no complaint at all and respondent No.3, who is working
as a Deputy Superintendent of Police he himself is the
complainant in column No.5 of the FIR and he himself though
claims in column No.9 that separate complaint has been
enclosed, there is no such complaint and apart from that, he
himself has registered the case giving requisition to the XXIII
Additional City Civil and Sessions Judge, Bengaluru and hence
the very contention of the learned counsel for the petitioner is
that the very registration of the case against the petitioner is
with manifest of malafides. The delay has not been properly
explained and apart from that there is no any demand and
acceptance which is sine quo non for registration of case under
the P.C.Act and the same is missing and merely referred the
name of this petitioner that illegal corrupt practice was made.
In the absence of any demand and acceptance recovery, there
cannot be any criminal prosecution that too under the P.C. Act.
No doubt in one case, it is contended that recovery is made at
the instance of the petitioner and in order to substantiate the
same, there is no material at all except creation of documents.
Though alleged that one Bhushan has handed over the amount
to the petitioner, no material on record and the petitioner is not
a part of the recovery proceedings except creation of mahazars
at the instance of panchas. But it is only creation of documents
by the respondents. No recovery of any bait money at the
instance of the petitioner, only an allegation is that he has
produced.
46. Having perused the material available on record, it is
a classic case of abuse of process. First of all, no complaint and
apart from that no demand and acceptance and that too case
has been initiated at the instance of respondent No.3 suo motu
by giving requisition to the Court. It is important to note that
other cases also have been registered against the petitioner
herein and this Court has granted stay in respect of other
proceedings in coming to the conclusion that there is no prima
facie material. Thereafter, second FIR has been registered by
the respondents in the absence of complaint and no allegations
of demand and acceptance by this petitioner and only referred
the name of other accused, who referred the name of the
petitioner. Under the circumstances, the petitioner facing the
criminal prosecution, which is serious in nature amounts to
miscarriage of justice.
47. This Court earlier granted an order of stay in these
proceedings also in all the petitions and the same has been
challenged before the Apex Court in S.L.P.(Crl.)Nos.387-
388/2021, 487-488/2021 and 493-494/2021 and though stay
was granted at the first instance vide order dated 05.07.2021,
those SLPs are dismissed confirming the order of stay granted by
this Court. When the matter was listed for hearing, the Apex
Court comes to the conclusion that no ground to interfere with
the impugned orders passed by this Court and confirmed the
order of stay granted by this Court.
48. Having considered the material available on record, I
have already pointed out that there is no any complaint and also
two petitions are arising out of the second FIR and the very
complainant himself has registered the case making request to
the Court and no demand and acceptance which is sine quo non
for registration of cases under the P.C. Act and when there is no
demand and acceptance, the question of invoking P.C. Act,
particularly Sections 7A and 13(1)(a) of the P.C. Act is nothing
but an abuse of process. If this Court fails to exercise the
powers under Section 482 of Cr.P.C. when there is no complaint,
demand and acceptance and that too six cases are registered
against this petitioner in one or the other either invoking IPC
offence or P.C. Act and it is prima facie emerged that it is a clear
case of abuse of process and infighting between the officers of
the very same department for the reasons best known to them
and booked the cases against this petitioner in one or the other
and hence it is appropriate to invoke Section 482 of Cr.P.C.
49. The Apex Court also in the judgment in the case of
STATE OF KARNATAKA v. L. MUNISWAMY AND OTHERS
reported in (1977) 2 SCC 699 with regard to the exercising the
powers under Section 482 of Cr.P.C. held that in exercise of
wholesome power, High Court is entitled to quash the
proceedings if it comes to the conclusion that allowing the
proceedings to continue would be an abuse of process of the
Court or that the ends of justice require that the proceedings
ought to be quashed. It is also observed that while exercising
the jurisdiction under Section 482 of Cr.P.C., the powers ought
not to be encased within the straight jacket of a rigid formula. It
is the duty of the Court to consider judicially whether the
material wants prosecution of a person. No doubt in the
judgment of the Apex Court which has been referred by the
learned counsel for the respondent in Dineshbhai Chandubhai
Patel (supra), held that it is the duty of the Investigating Officer
to examine the contents of the complaint and if prima facie
discloses then the Court should not venture to exercise the
power under Section 482 of Cr.P.C. and if no prima facie
material is disclosed in the complaint, it amounts to an abuse of
process, which leads to miscarriage of justice, then the Court
can invoke Section 482 of Cr.P.C. But in the cases on hand, no
complaints at all, except the requisition of the complainant to the
Court.
50. The Apex Court also in the judgment in the case of
STATE OF HARYANA AND OTHERS v. BHAJANLAL AND
OTHERS in paragraph No.102 has categorically held that where
the allegations made in the FIR or the complaint, even if they
are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case
against the accused. Under the circumstances, the Court can
exercise the powers under Section 482 of Cr.P.C. It is further
held that the allegations in the FIR do not constitute a cognizable
offence, but constitute only non-cognizable offence, no
investigation is permitted by the police officer without an order
of a Magistrate as contemplated under Section 155(2) of the
Code and further given an illustration that in the FIR or
complaint are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused, the
Court can invoke Section 482 of Cr.P.C. The other
circumstances illustrated by the Apex Court is that where a
criminal proceeding is manifestly attended with malafide and/or
where the proceeding is maliciously instituted with an ulterior
motive for wrecking vengeance on the accused and with a view
to spite him due to private and personal grudge, the Court can
exercise the powers under Section 482 of Cr.P.C.
51. Having considered the principles laid down in the
judgment referred supra, I have already pointed out that no
complaint, no demand and acceptance and the case is registered
by the very same Dy.S.P. with the request to the Court in the
form of requisition and the very same complainant who
registered the case has taken up the investigation and number
of cases are registered against the petitioner. This Court already
pointed out that it is nothing but an infighting between the very
same department officers for the reasons best known to them.
Under such circumstances, the registration of the criminal case
against the petitioner is nothing but manifest of malafides and
also there is a delay in registration of the case. The aggrieved
persons have not given any complaint and instead of suo motu
cases are registered by the complainant only on the basis of the
requisition made to the Court and there is no recovery. Under
the circumstances, the registration of the case against this
petitioner is without any basis and the requisition is also nothing
but an absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion. If this Court
fails to exercise the powers conferred under Section 482 of
Cr.P.C., it will be failing in duty to prevent the abuse of process
of law, which leads to miscarriage of justice. The cases are
registered with the ulterior motive for wrecking vengeance on
the accused and hence, this Court comes to the conclusion that
it is nothing but an abuse of process.
52. In view of the discussions made above, I pass the
following:
ORDER
(i) The petitions are allowed.
(ii) The FIRs registered against the petitioner
herein in Crime Nos.15/2020, 16/2020 and
17/2020 by the respondents are hereby
quashed.
Sd/-
JUDGE
CP/MD
