Sri Ratan Babulal Lath vs State Of Karnataka
2022 Latest Caselaw 3187 Kant

                                                  CRL.A.No.222/2022


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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 24TH DAY OF FEBRUARY 2022

                          BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

           CRIMINAL APPEAL NO.222/2022
BETWEEN:

SRI.RATAN BABULAL LATH
S/O SRI.BABULAL LATH
AGE - 60 YEARS
R/O. NO.35, SAINT MARKS ROAD
RICHMOND TOWN
BANGALORE - 560 025                      ... APPELLANT

(BY SRI.ASHWIN VAISH, ADVOCATE FOR
    SRI.GAUTAM S BHARADWAJ, ADVOCATE)

AND:

STATE OF KARNATAKA
THROUGH
ANTI-CORRUPTION BUREAU
KHANIJA BHAVAN
RACECOURSE ROAD
BENGALURU CITY - 560 001                ... RESPONDENT

(BY SRI.MANMOHAN P.N., SPL.P.P.)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 11 OF
THE CRIMINAL LAW AMENDMENT ORDINANCE 1944 OF P.C.
ACT READ WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH
THE    ORDER   DATED   18.01.2022   PASSED   IN     CRL.   MISC.
NO.5973/2021 IN SPL.C.C. NO.259/2020 IN CR.NO.13/2019, BY
                                                       CRL.A.No.222/2022


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THE COURT OF XXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE FOR P.C.ACT AT BENGALURU CITY
VIDE ANNEXURE - A AND CONSEQUENTLY DIRECT RELEASE
FROM ATTACHMENT OF THE SUBJECT MATTER PROPERTY.

       THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS   DAY,    THE    COURT      THROUGH      VIDEO   CONFERENCE
DELIVERED THE FOLLOWING:

                            JUDGMENT

Aggrieved by the order of attachment of his

property, accused No.6 in Spl. C.C. No.259/2020 on the

file of the XXIII Addl. City Civil and Sessions Judge &

Special Judge for Prevention of Corruption Act at

Bengaluru has preferred the above appeal.

2. Special C.C.No.259/2020. was registered on

the basis of the charge sheet filed by Anti Corruption

Bureau, Bengaluru in Crime No.13/2019 for the offences

punishable under Sections 13(1)(d)(ii) read with Section

13(2) of the Prevention of Corruption Act, 1988 ('PC Act'

for short) and Sections 408, 409, 420, 465, 468, 471,

120(B) and 201 read with Section 34 of IPC.

CRL.A.No.222/2022

3. The case of the prosecution in brief is as

follows:

Sy.No.132 of Kowdenahalli village originally belonged

to one Revanna. Revanna and his son Munirajappa formed

revenue layout in the said property and sold the sites in

that layout to several purchasers. The purchasers were

put in possession of the actual property. Some of them

constructed the houses in the year 2002. Bruhat

Bengaluru Mahanagara Palike ('BBMP' for short) notified

the said land for acquisition for widening the road.

Revanna died on 07.04.2011. The appellant and other

accused were though aware that the land is already sold

by Revanna, managed to get the khata changed in the

names of heirs of Revanna representing that they have

inherited the property from Revanna and by omission they

did not give application for change of khata. By virtue of

acquisition of land, the occupants of the lands were

entitled to Transferable Development Rights ('TDR' for

short) and Developmental Rights Certificate ('DRC' for

short). Accused Nos.2, 6 and 9 were the TDR Brokers. To CRL.A.No.222/2022

make unlawful loss to the actual occupants and to make

unlawful gain for themselves, accused Nos.11 to 17 in

collusion with the BBMP employees (A.1, A.8, A.10, A.19

and A.20) managed to get DRC/TDR in favour of accused

Nos.2 to 6 and 9 and collected a sum of Rs.27,68,79,201/-.

Such amount was collected in the name of the company

(Accused Nos.2 to 4 and 9). Accused No.6 is the Director

of accused No.9. In managing to get the TDRs and the

consequent benefit from that, the accused submitted

predated application for TDRs etc., Out of such illegal

money accused No.6 has acquired certain properties.

4. In the said proceedings, the prosecution filed

application as per Annexure-F under Section 3(1) of the

Criminal Law (Amendment) Ordinance, 1944 ('the

Ordinance' for short) read with Section 18A of PC Act

seeking attachment of properties of the accused. The

property bearing site No.35,(BBMP PID No.76-20-35)

situated at Saint Marks Road, Richmond Town, Bengaluru,

8,800 Sq.ft., standing in the name of accused No.6 was CRL.A.No.222/2022

sought to be attached. The other properties in the

application related to the other accused.

5. The trial Court registered the said application

in Criminal Miscellaneous No.5973/2021. By the order

Annexure-H dated 22.07.2021 the trial Court granted ad-

interim order of attachment of the application schedule

immovable properties including the property of the

appellant. Further the trial Court issued notice to the said

accused to show-cause why the ad-interim attachment

order shall not be made absolute. On receiving the notice

the appellant appeared before the trial Court and

submitted his objections as per Annexure-J.

6. As per Section 5(1) of the Ordinance, the

District Judge can make the interim order absolute if no

cause is shown. Section 5(2) requires the District Judge to

hold the investigation in the objection, if objections are

filed. In such investigation, the District Judge may examine

the parties and in all other respects shall have the powers

akin to the powers of the Court under the Code of Civil CRL.A.No.222/2022

Procedure, 1908. Section 5(2) of the Act further says that

the District Judge shall permit the objector to adduce

evidence to show that on the date of the attachment he

had some interest in the property attached. Then Section

5(3) empowers the District Judge to pass order either

making the ad interim order of attachment absolute or

vary it by releasing a portion of the property from

attachment or withdrawing the same. Accordingly, the

appellant submitted his evidence by way of affidavit as per

Annexure-K.

7. The prosecution concluded the cross-

examination of RW.1 on 12.11.2021. On that day the

appellant closed his evidence. The Prosecution submitted,

it has no evidence. On the very same date, the trial Court

heard both side and posted the matter to 06.01.2022 for

orders. The records show that on 06.01.2022 the appellant

and other Co-accused were absent. The Counsel for the

appellant alone appeared. It was brought to the notice of

the learned Counsel for the appellant that on 23.12.2021

after the matter was reserved for orders, the prosecution CRL.A.No.222/2022

filed certain records. The prosecutor was directed to

furnish the copies of the report dated 16.11.2021 to the

appellant's Counsel and the matter was adjourned to

07.01.2022.

8. On 07.01.2022 neither the appellant nor his

advocate appeared before the Court. The records show

that the learned Public Prosecutor submitted that he has

furnished the copies of the report dated 16.11.2021 to

Respondent No.1. On recording the same, the trial Court

posted the case on 18.01.2022 for orders. On 18.01.2022

the trial Court passed the impugned order holding that the

documents produced by the prosecution were sufficient to

hold that attached property was purchased by the

appellant from the proceeds of the crime. It was further

held that the prosecution was not required to prove the

allegation by direct evidence.

Submission of the learned Counsel for the appellant:

9. The impugned order is violative of principles of

natural justice, therefore, it is unfair. The documents CRL.A.No.222/2022

submitted on 06.01.2022 were not served on the

appellant. The appellant had no opportunity to meet those

documents and submit his objections with reference to

those documents.

Submissions of the learned Special Public Prosecutor :

10. The majority of the annexures produced along

with the report were part of the chargesheet, thereby no

prejudice is caused to the appellant on account of not

serving those documents and report on him. Therefore the

order does not call for interference.

11. Having regard to the rival submissions, the

question that arises for consideration is, "Whether the

order impugned making interim order of attachment

absolute is sustainable in law?".

Analysis:

12. As already pointed out, as per Section 5(2) of

the Ordinance, if objections are filed in response to the

show-cause notice, then the District Judge shall investigate

into the same. In conducting such investigation as regards

examination of the parties and in all other respects, the CRL.A.No.222/2022

District judge shall have powers of the Court in hearing the

suit under the Civil Code of Procedure. Accordingly, the

District Judge examined RW.1.

13. However, after the matter was reserved for

orders, the prosecution introduced some new documents.

Admittedly those documents were not supplied to the

appellant. The endorsement in the order sheet dated

06.01.2022 shows that only counsel for appellant was

intimated about filing of such report along with annexures.

14. As already noted, on hearing the parties on

22.12.2021 the trial Court posted the case on 06.01.2022

for orders. The order sheet dated 06.01.2022 shows that

on that day the appellant did not appear. Only the counsel

for the appellant was intimated that the Public Prosecutor

filed a memo on 23.12.2021 in the Registry.

15. Thereafter the case was posted to 07.01.2022.

The order sheet dated 07.01.2022 shows that on that day

both appellant and his Counsel did not appear. The Court

noted the submission of the Public Prosecutor that they CRL.A.No.222/2022

have furnished the copies of the report dated 16.11.2021

to Respondent No.1. Thereafter the trial Court posted the

case on 18.01.2022 and on 18.01.2022 passed the

impugned order.

16. The records produced by the learned Special

Public Prosecutor before this Court themselves show that

the copies were neither served on the counsel for the

appellant nor on the appellant. The copy of the memo

produced before this Court bears only purported

endorsement 'Seen'.

17. It is the basic principle of natural justice either

under the Civil Code of Procedure or under Criminal Code

of Procedure that the party should have an opportunity to

meet any material evidence produced before the Court by

adversary. The aforesaid facts and circumstances of the

case show that prosecution produced documents before

the Court after closure of hearing. That was not within the

knowledge of the appellant.

CRL.A.No.222/2022

18. Though it is contended that the documents

produced as annexures to report dated 16.11.2021 were

part of the charge sheet, learned Special Public Prosecutor

fairly concedes that Annexures-B,C,D,F and H to the report

were not part of the charge sheet. Therefore it is clear that

the trial court passed the impugned order relying on the

annexures produced along with the report as well as report

without their being opportunity to the appellant to meet

that. Such procedure does not meet the requirements of

principles of natural justice.

19. At this stage, learned Counsel for the appellant

submits that if impugned order is set aside, the

attachment of order also shall go as interim order merges

with the final order. Learned Special Public Prosecutor

submits that if once impugned order is set aside, the

status-quo gets reinstated. Therefore, the interim order of

attachment will not go and only further enquiry is to be

conducted.

CRL.A.No.222/2022

20. What is challenged in this case is the order

making interim attachment absolute and not the interim

order of attachment. If once the order is set aside the

status as on 18.01.2022 ie., the date of passing of order

will be restored. That means the interim order of

attachment continues. It is open to the appellant to meet

the documents produced by the prosecution in accordance

with law.

With these observations the appeal is allowed.

The impugned order dated 18.01.2022 making

interim order of attachment absolute is hereby set aside.

The prosecution is directed to furnish the copies of the

documents to the appellant/appellant's Counsel.

On such compliance the trial court shall give

opportunity to both parties and dispose of the objection to

the order of interim attachment in accordance with law.

Sd/-

JUDGE akc