Shri. B. Bhaskar Acharya vs State Of Karnataka
2022 Latest Caselaw 8232 Kant

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                                       WP No. 101901 of 2018


 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

          DATED THIS THE 7TH DAY OF JUNE, 2022

                          BEFORE
        THE HON'BLE MR JUSTICE V.SRISHANANDA
       WRIT PETITION NO. 101901 OF 2018 (GM-RES)
BETWEEN:

SHRI. B. BHASKAR ACHARYA,
S/O B. MAHABALA ACHARYA,
AGE: ABOUT 59 YEARS, EXECUTIVE ENGINEER,
MINOR IRRIGATION AND WATER RESOURCES,
HALIYAL DIVISION, R/AT NO.HUDCO COLONY,
NEAR CHIDANANDA ASHRAM, GADAG,
GADAG DISTRCIT-582101.
                                                 ...PETITIONER
(BY SRI. VIJAY A.KUMAR, ADVOCATE)
AND:

1.   STATE OF KARNATAKA
     REPRESENTED BY ITS PRINCIPAL SECRETARY,
     MINOR IRRIGATION AND GROUND WATER
     DEVELOPMENT DEPARTMENT,
     VIKAS SOUDHA, BENGLAURU-560001.

2.   THE POLICE INSPECTOR
     ANTI CORRUPTION BUREAU, KOPPAL,
     KOPPAL, KOPPAL DISTRICT-583231.

3.   THE EXECUTIVE ENGINEER
     MINOR IRRIGATION AND GROUND WATER
     DEVELOPMENT DEPARTMENT,
     KOPPAL DIVISION,
     KOPPAL DISTRICT-583231.
                                               ...RESPONDENTS
(BY SRI. PRAVEEN UPPAR, HCGP FOR R1 AND R3;
 SRI SANTOSH B.MALAGOUDAR, ADVOCATE FOR R2)
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                                      WP No. 101901 of 2018


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C.
PRAYING TO:- (i) CALL FOR THE RECORDS RELATING TO
COMPLAINT DATED:28.10.2017 VIDE ANNEXURE-A OF THE 3RD
RESPONDENT AND FIR IN CRIME NO.4/2017 DATED
28.10.2017 OF THE 2ND RESPONDENT VIDE ANNEXURE-B, ON
THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS AND
SPECIAL JUDGE, KOPPAL DISTRICT AND ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
                          ORDER

Heard the learned counsel for the parties and

perused the records.

2. The present petition is filed under Article

226 of the Constitution of India r/w Section 482 of

Cr.P.C with the following prayer :-

(i) Call for the records relating to complaint dated 28.10.2017 vide Annexure-A of the 3rd respondent and FIR in Crime No.4/2017 dated 28.10.2017 of the 2nd respondent vide Annexure- B, on the file of the Principal District and Sessions and Special Judge, Koppal District;

(ii) Quash the complaint dated 28.10.2017 vide Annexure-A of the 3rd respondent and FIR in Crime No.4/2017 dated 28.10.2017 of the 2nd respondent vide Annexure-B, on the file of the

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Principal District and Sessions and Special Judge, Koppal District, insofar as it relates to the petitioner is concerned.

3. The brief facts of the case are as under:-

The 2nd respondent-police registered a case

against the petitioner herein in Crime No.4/2017 for

the offences punishable under Section

13(1)(c)(i)(ii)(iii), 13(2) of Prevention of Corruption

Act, 1988 r/w Section 420 and 120B of IPC noting on

certain complaint given by the 3rd respondent-

Executive Engineer, which is annexed to the writ

petition at Annexure-A. It has been contended that

in the financial year 2009-10 Rs.596 lakhs has been

sanctioned for the on-going work, but the bill that

has been raised is Rs.897 lakhs and without prior

approval, Rs.301 lakhs has been paid. So also for

the financial year 2011-12, Rs.1227 lakhs has been

paid by raising the bills without prior approval.

Likewise for the financial year 2012-13, Rs.1745

lakhs has been paid. As such, there were malafides

WP No. 101901 of 2018

attributed to the petitioner and sought for necessary

action.

4. The petitioner challenged the registration

of the FIR on the following grounds:

• The petitioner submits that the 2n d respondent, having not been declared as a Police Station under Section 2 (s) of the Cr.P.C. 1973, has not authority to register an FIR. Therefore, the entire proceedings initiated by the 2nd respondent are without authority of law. In this regard the Petitioner relies on the decision of the

(i) 1983 (1) KLJ 276- Mushtaz Ahmed Vs State of Karnataka and others

(ii) 1984 (1) KLJ 219-C M Prasad and others Vs. State of Karnataka and others.

• The Petitioner further submits that as per the Executive Order dated 14.3.2016, it is mandatory that before initiating the criminal proceedings by registering the FIR, and commence

WP No. 101901 of 2018

investigation in terms of the Clause (5) of the Executive order, the Inspector of Police ACB has to take prior permission of the appointing authority. No such steps have been taken by the 2n d respondent. Therefore, on this ground also the entire proceedings initiated or vitiated.

• The petitioner further submits that he had worked only for a brief period i.e. 2.8.2013 to 23.9.2013. On explaining that he had no authority to prove the estimate or piece works during his tenure as Incharge Executive Engineer, accepting the same the Chief Engineer, Vijayapura, had submitted a report to the 1st respondent to drop the proceedings against him. However, ignoring the said recommendations, without application of mind the 1st respondent has directed the 3rd respondent to initiate criminal proceedings against the Petitioner also. Therefore, the entire proceedings are hit by gross abuse of process of law and non application of mind.

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• The Petitioner respectfully submits without prejudice to the above contentions, that on the basis of the reference made to the Lokayukta under Section 7(2) of the Lokayukta Act, 1984, investigation report was submitted after verification of the records for the period 2009-10, 2011- 12 and 2012-13. After verification of the records, the Investigation Officer, came to the conclusion that the entire allegation relates to the period of Shri Maruthi Gokhale, who was working as Executive Engineer during the said period. Therefore initiation of the criminal proceedings against the Petitioner are bad in law.

• The Petitioner further submits that he had worked for the period 2.8.2013 to 23.9.2013 as incharge Executive Engineer, Minor Irrigation Division. Kushtagi. At that stage, there was no excess payment of bills over and above the grants received. This is also evident from the recommendations made by the Executive Engineer and the Chief

WP No. 101901 of 2018

Engineer, Vijayapura, who had submitted the report to 1 s t respondent. However, the 1st respondent while directing the 3 r d respondent to initiate criminal proceedings has relied on the report of the Chief Engineer, Minor Irrigation, Vijayapura, submitted before the investigation by the Lokayukta on 06.11.2013. Therefore, the initiation of criminal proceedings would be arbitrary and illegal and gross abuse of process of law.

• The   Petitioner        also       submits     that    the
  report      of         the         Lokayukta         dated

10.01.2017, is a report submitted after conducting investigation under Section (9) of the Lokayukta Act, 1984. In the said report it is specifically stated that the allegations are only against Shri Maruthi Gokhale the then Executive Engineer who had worked between 2009-10, 2011-12 and 2012-13 as Executive Engineer, Kushtagi. No reference has been made in the report regarding alleged irregularities in execution of works by the petitioner.

WP No. 101901 of 2018

Therefore, the initiation of criminal proceedings in the absence of any criminal misconduct having been committed by the Petitioner, would be contrary to the decision of the Apex Court reported in 1992 Supp 1 SCC 335 State of Haryana Vs Bhajanlal, wherein in case of gross abuse of process of law, provision has been made to initiate proceedings under section 482 of Cr.P.C. to quash the entire proceedings.

• The Petitioner also submits that though a reference was made under section (2) of the Lokayukta Act, 1984 and the investigation were conducted by the Lakayukte under section 9 of the said Act, which is the only provision under which investigation could be conducted, section 9(3) of the Lokayukta provides that a copy of the complaint be furnished to the officials against whom such complaints being made. No such procedure has been followed before submitting the report by the Lokayukta under section 12 of the Lokayukta Act, 1984. In this regard, the Petitioner

WP No. 101901 of 2018

relies on the decision of the Division Bench of this Hon'ble Court reported in ILR 1990 Karnataka 798 (K.Chowdappa vs. State of Karnataka) wherein it is held that notice to the public servant is mandatory, if the Lokayukta intends to proceed further, in the matter under section 9 of the Lokayukta, 1984. On this ground also the impugned complaint and the FIR be no based on the report of the investigation are able to be interfered with.

• The Hon'ble Supreme Court while examining the powers of the High Court in quashing the FIR held that the inherent powers under section 482 of Cr.PC, 1973 can be exercised either to prevent the abuse of process or other otherwise to secure ends of justice. The FIR can be quashed where the allegations made therein as it is not constitute an offence. The criminal law cannot be set in motion as a matter of course. The Hon'ble Supreme Court in the case of Pepsi Food Ltd., and another vs. Sub-judicial Magistrate & Others,

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WP No. 101901 of 2018

reported in 1998 5 SCC 749 held that the High Courts are entitled to exercise inherent jurisdiction for quashing a criminal case/ FIR when the allegations made do not disclose any commission of offence. Admittedly, in the instant case, the investigation report of the Lokayukta is silent about any allegation being made against the Petitioner who discharge the duties of the post of Executive Engineer from 2.8.2013 to 23.9.2013. In the instant case, ignoring they subsequent report of the Chief Engineer, to drop the name of the petitioner from the proceedings, the 1" respondent, has proceeded to direct the 3rd respondent to file a criminal complaint against the petitioner also. The criminal proceedings have been initiated though even the complaint is silent regarding taking steps against the Petitioner. Even the 2 n d respondent has failed to notice the same before registering an FIR in Crime No.4/2017. Therefore, the entire proceedings being in gross abuse of process of Court are liable to be interfered with.

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• The petitioner further submits that a reading of complaint does not disclose the name of the petitioner or any offence against the Petitioner. However, the 2 n d respondent has proceeded to include the name of the petitioner in the FIR, without there being any complaint against him. When the complaint does not disclose any offence the proceedings are liable to be quashed. In this regard the applicant relies on the decision of the Apex court reported in P S MEHERHOMIJI VS. T Vijayakumar, [ 2015 (1) SCC 788 (PARA

14)] Further in the case of Ravindra Singh Vs. Sukbhir Singh, reported in 2013 (9) SCC 245 and in the case of Virender Singh Vs. State of Punjab reported in 2014 (3) SCC 151 held that the Hon'ble High Court can exercise power to quash the FIR, if the complaint and FIR does not disclose any offence and the High Court would be justified in quashing the same.

5. Reiterating the above grounds, learned

counsel for the petitioner contended that prima facie

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the petitioner is no way responsible for the alleged

offences and Chief Engineer who is the sanctioning

authority has given a report stating that the

petitioner had no role whatsoever in the alleged

action and therefore, sought for quashing of

complaint/FIR. He also drew the attention of this

Court to Annexure-H whereunder, Government Order

dated 14.03.2016 has been called out whereby Anti

Corruption Bureau without prior sanction, cannot

register the case against a public servant.

6. Per contra, Sri Santosh B.Malagoudar

contends that the FIR came to be registered and the

matter is to be investigated and if no materials are

found against the petitioner, the Anti Corruption

Bureau would definitely file necessary report before

the appropriate authorities and therefore it is too

premature for the petitioner to seek quashing of the

registration of the FIR and sought for dismissal of

the petition.

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7. In view of the rival contentions of the

parties, this Court perused the material on record

meticulously.

8. The contention of the petitioner that he

worked only for a period of two months and

therefore, he cannot be held liable for the alleged

additional payment said to have been made for the

financial years 2009-10, 2010-11, 2011-12 and

2012-13. In this regard, Annexure-E has been relied

upon by the learned counsel for the petitioner.

Annexure-E is the letter written by Chief Engineer to

the Secretary to the Government, Minor Irrigation

Department whereunder, it has been mentioned that

the petitioner has served for a short period in the

post of in-charge Executive Engineer within that

short period, he has not made any payments beyond

the permissible limits and therefore prima facie

there is no material as against the petitioner and the

charges leveled against him needs to be dropped.

Despite the same, the complaint came to be

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registered. The said letter is addressed on

04.03.2013 and despite the same, a complaint came

to be registered by the 2 n d respondent based on the

complaint of 3 r d respondent on 28.10.2017 for the

aforesaid offences in Crime No.4/2017. Admittedly,

no prior sanction is obtained as per the Government

Order dated 14.03.2016 referred to supra.

Therefore, a case is made out by the petitioner that

the FIR registered by the 2 n d respondent based on

the complaint of the 3 r d respondent needs to be

quashed. Having said these, if there are material

that has been which is not referred to by the Chief

Engineer while addressing a letter to the Secretary

to the Government and if sanction order is to be

obtained against the petitioner that would not

prevent the 2 n d respondent to proceed against the

petitioners in accordance with law. Accordingly, this

Court pass the following:-

ORDER The Writ Petition is allowed.

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The FIR in Crime No.4/2017 of Anti Corruption Bureau of Koppal for the offences punishable under Section 13(1)(c)(i)(ii)(iii), 13(2) of Prevention of Corruption Act, 1988 r/w Section 420 and 120B of IPC registered by 2 n d respondent consequent upon the complaint lodged by the 3 r d respondent is hereby quashed with the observations made in the body of the judgment.

SD/-

JUDGE

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