S L Haleshappa vs The State By Lokayuktha Police ...
2022 Latest Caselaw 7410 Kant

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 25TH DAY OF MAY, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.10263 OF 2021

BETWEEN:

S.L.HALESHAPPA
S/O LATE LAKSHMAPPA
53 YEARS
KARNATAKA HOUSING BOARD
A.M.PALYA, SHIRA GATE
TUMAKURU - 572 101

PRESENTLY AT
NO.110, I FLOOR
KRISHNA VILLAMENT
OPP: GLOBAL TECH PARK
PATTANAGERE MAIN ROAD
R.R.NAGAR, BENGALURU - 560 098.
                                                ... PETITIONER
(BY SRI S.G.BHAGAVAN, ADVOCATE)

AND:

1.     THE STATE BY LOKAYUKTHA POLICE STATION
       SHIVAMOGGA - 577 201.
       REPRESENTED BY ITS
       SPECIAL PROSECUTOR
       SRI B.S.PRASAD.

2.     K.C.PURUSHOTHAM
       MAJOR IN AGE
       POLICE INSPECTOR
       OFFICE OF THE
                                2



     POLICE INSPECTOR
     KARNATAKA LOKAYUKTHA
     SHIVAMOGGA - 577 201.
                                                  ... RESPONDENTS

(BY SRI B.S.PRASAD, SPECIAL COUNSEL)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.,    PRAYING    TO   QUASH    THE  PROCEEDINGS   IN
SPL.C.(PC)NO.1/2015 ON THE FILE OF I ADDITIONAL SESSIONS
AND SPECIAL JUDGE, SHIVAMOGGA FOR THE OFFENCE P/U/S
13(1)(e) R/W 13(2) OF PREVENTION OF CORRUPTION ACT.


    THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.03.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
                             ORDER

The petitioner is before this Court calling in question the

proceedings in Spl.C.(PC) No.1/2015 pending before the I

Additional Sessions and Special Judge, Shivamogga, for the

offences punishable under Sections 13(1)(e) read with 13(2) of

the Prevention of Corruption Act, 1988 (for short 'the Act').

2. Heard Sri S.G.Bhagavan, learned counsel for the

petitioner and Sri B.S. Prasad, learned special counsel for the

respondents - Lokayuktha.

3. Sans details, facts in brief as projected by the

prosecution are as follows:

The petitioner is working in Karnataka Housing Board, a

Department of State Government, in the cadre of Assistant

Executive Engineer on in-charge basis and is in the substantive

cadre of Assistant Engineer. On 25.07.2013, on receipt of

information and allegation that the petitioner was in possession

of the property disproportionate to the known sources of income

registers a FIR in crime No.6/2013 for offences punishable

under Sections 13(1)(e) read with 13(2) of Act. The crime was so

registered on a search conducted on the properties of the

petitioner.

4. The petitioner immediately calls in question the said

action before this Court in Crl.P.No.5571/2013. The said

petition came to be disposed by an order of this Court dated

25.11.2013, directing the investigating agency to consider the

explanation given by the petitioner with regard to the income

and execution of the assets before filing of the charge sheet.

After the disposal of the aforesaid case, the respondents - police

filed a final report on completion of investigation, a charge sheet

on 27.06.2015. The trial court on filing of the charge sheet

takes cognizance of the offence against the petitioner for the

afore-quoted offences by order dated 30.06.2015.

5. On the Court taking cognizance against the petitioner,

the petitioner files an application under Section 227 of the

Cr.P.C., seeking his discharge. The said application is turned

down by the learned Special Judge by his order dated

02.11.2021 and the matter was set out for framing out charges

on 12.01.2022. It is at that juncture, the petitioner has knocked

the doors of this Court in the subject petition.

6. Sri S.G.Bhagavan, learned counsel for the petitioner

would vehemently argue and urge the following contentions:

a. That the learned Special Judge while taking

cognizance of the offences and issuing summons to the

petitioner either under Section 190(1)(b) of the Cr.P.C. or

under Section 204 of the Cr.P.C., such orders must bear

application of mind. The order of the learned Special

Judge does not bear any application of mind.

b. The petitioner had approached this Court in

Crl.P.No.5571/2013. This Court by its order dated

25.11.2013, has clearly directed that the explanation

submitted by the petitioner should be considered before

filing of the charge sheet. In the case at hand, the charge

sheet is filed without looking at the explanation submitted

by the petitioner, which vitiates the proceedings.

7. Sri B.S.Prasad, learned special counsel for the

respondents would refute the submissions to contend that the

order of taking cognizance and issuing summons upon a final

report need not bear application of mind as it would become a

matter of trial, where the petitioner would get all opportunity of

defend. He would submit that before filing of the charge sheet,

entire material is looked into, and contend that the learned

Special Judge declining to discharge the petitioner cannot be

found fault with, seeks dismissal of the petition and continuous

of trial.

8. I have given my anxious consideration to the

submissions made by the learned counsel appearing for both

parties and perused the material on record.

9. The afore-narrated brief facts are not in dispute. The

proceedings against the petitioner emanate on an allegation of

amassing wealth disproportionate to the known source of

income and the crime is registered for the offences under

Sections 13(1)(e) read with 13(2) of the Act. The moment the

crime was registered, the petitioner was before this Court in

Crl.P.No.5571/2013, challenging the registration of the FIR in

crime No.6/2013 dated 25.07.2013. This Court by its order

dated 25.11.2013, disposed the petition by the following order:

"Petitioner is the accused in crime No. 6/2013 for the offences punishable under Section 13(1)(e) and 13(2) of Prevention of Corruption Act. The matter is under investigation.3

2. Learned counsel for the petitioner firstly contends that the petitioner submitted his explanation before the Investigating Officer explaining the sources of income, acquisition of assets etc. Learned counsel for the respondent Nos. 1 to 3 submits that they will consider the explanation of the petitioner in the course of investigation before filing the charge sheet.

3. The submission of the learned counsel for the respondent Nos. 1 to 3 is placed on record. Respondent Nos. 1 to 3 are hereby directed to expedite the matter. Accordingly, the petition is hereby disposed off."

(emphasis supplied)

This Court disposed the petition on a submission made by the

learned counsel representing the respondents that they would

consider the explanation submitted by the petitioner with regard

to the sources of the income and acquisition of assets before

filing the charge sheet. There is no document except the charge

sheet filed before the competent Court, and what is produced by

the respondents or even submitted by them is that they have

considered the explanation of the petitioner as directed by this

Court. This is the first flaw that is noticeable in the case at

hand.

10. Section 190(1)(b) or Section 204 of the Cr.P.C.

empowers the learned Magistrate or the Sessions Judge as the

case would be, to take cognizance of the offence and issuing

summons against the accused. The Apex Court in the case of

PEPSI FOODS LTD. V. SPECIAL JUDICIAL MAGISTRATE

reported in (1998) 5 SCC 749,

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In the light of the law laid down by the Apex Court that

summoning an accused is a serious matter, the order taking

cognizance and issuing process ought to bear application of

mind. This is the consistent view taken by the Apex Court in the

plethora of cases. All these issues have been considered by the

Apex Court in the case of PRADEEP.S.WODEYAR VS STATE OF

KARNATAKA reported in 2021 SCC ONLINE SC 1140,

"D. The Conclusion

101. In view of the discussion above, we summarise our findings below:

(i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate under Section 209 CrPC. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular;

(ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC;

(iii) The decision in Gangula Ashok (supra) was distinguished in Rattiram (supra) based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of

challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others;

(iv) In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated;

(v) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no 'failure of justice' under Section 465 CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 CrPC;

(vi) The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible under Section 220 CrPC. There is no express provision in the MMDR Act which indicates that Section 220 CrPC does not apply to proceedings under the MMDR Act;

(vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 CrPC. Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings;

(viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise

appears that the Special Judge has applied his mind to the material;

(ix) A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub- Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the respondent has complied with Section 22 CrPC; and

(x) The question of whether A-1 was in-charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There appears to be a prima facie case against A-1, which is sufficient to arraign him as an accused at this stage."

(Emphasis supplied)

The three judge of the Apex Court while considering the

entire spectrum of law with regard to taking cognizance and

issuing summons to the accused, has held that the order taking

cognizance need not be elaborate or in the nature of a mini trial

but nonetheless should bear application of mind. Therefore,

such application of mind will be demonstrable only when the

order taking cognizance would contain reasons albeit brief for

taking such cognizance and issuing process. On the bedrock of

the principles laid down by the Apex Court in the case of

PRADEEP S.WODEYAR (supra), if the order taking cognizance in

the case at hand is noticed, it becomes unmistakably

demonstrable that it bears no application of mind. The order

taking cognizance and issuing summons reads as follows:

"Perused the charge sheet. Cognizance taken against accused for the offence punishable U/sec.13(1)(e) r/w. 13(2) of Prevention of Corruption Act, 1988.

Register the case and issue summons to accused."

Except saying perused the charge sheet, nothing else is

stated by the Special Judge while taking cognizance and issuing

process. This is the second flaw in the proceedings. Both these

flaws would go to the root of the matter as the first touches upon

violation of the direction of this Court while disposing the

Crl.P.No.5571/2013, on the submission made by the learned

counsel for the Lokayuktha. Therefore, it was obligatory upon

the Lokayuktha to comply with the directions of this Court and

then to file the charge sheet. Complying with the directions of

this Court would mean, passing an order before filing of the

charge sheet as it was undertaken by the learned counsel for the

Lokayuktha that they would consider the explanation of the

petitioner prior to filing of the charge sheet. No such

consideration being made by the respondents - Lokayuktha in

terms of the directions of this Court, is an admitted fact.

11. The second being order of cognizance which suffers

blatant non-application of mind. The petitioner on these

grounds inter alia sought his discharge from the case by filing an

application. All that explanation that was tendered to the

Lokayuktha was also made a ground in the discharge

application. The averment in the discharge application reads as

follows:

"2. It is submitted that the accused has already declared all the movable and immovables properties acquired by him by explaining the sources of income to the concerned Competent authorities through Assets and Liabilities statement and I.T. returns time to time. In the meantime, also the accused has submitted his Assets and Liabilities Statement and I.T.returns to the Lokayukta Police for consideration during the Investigation on 26-12- 2013. The Complainant Authorities have submitted before the Hon'ble High Court of Karnataka at Bangalore in Criminal Petition No.5571/2013 that they will consider the explanation of the accused in the course of Investigation before filing charge sheet. But, they have not at all considered the same. Finally they have concluded the investigation that the accused during his tenure from 12-3-2000 to 26- 07-2013 as a Government servant ameassed wealth to a tune of Rs.1,48,35,271-55 (255.27%) alleging

that which is disproportionate to his known source of income and by obtaining the Sanction have filed the charge sheet against the accused."

(Emphasis added)

Therefore, it is the stand of the petitioner right from 2013 when

he approached this Court that his explanation has to be

considered. The learned Special Judge ought to have considered

the fact while passing an order for discharge. The Special Judge

proceeds on the footing that on the perusal of the charge sheet

papers would prima facie depict a strong case made out by the

prosecution for continuance of the trial. Therefore, on these

flaws, the entire proceedings against the petitioner would be

rendered unsustainable. However, it would be open to the

respondents - Lokayuktha to comply with the directions of this

Court by considering the explanation submitted by the petitioner

and then take further action, if they so desire.

12. Insofar as the judgment relied on by the learned

counsel for the respondents in the case of the STATE OF

GUJARAT VS. AFROZ MOHAMMED HASANFATTA reported in

AIR 2019 SC 2499. The said judgment is considered by a three

Judge Bench in the case of PRADEEP S. WODEYAR (supra) and

therefore, independently considering the judgment in the case of

AFROZ (supra) would not arise. The judgment of this Court

rendered in Crl.R.P.No.1479/2019 in the case of

S.C.JAYACHANDRA VS. STATE OF KARNATAKA, disposed on

18.05.2020 also does not require an analysis in the light of the

judgment rendered by the three Judges Bench of the Apex Court

in the case of PRADEEP S. WODEYAR (supra). No other

submission or authority is placed on record by the learned

counsel for the respondents.

13. For the aforesaid reasons, the following:

ORDER

(i) The criminal petition is allowed.

(ii) The proceedings in Spl.C.(PC) No.1/2015 pending before the I Additional Sessions and Special Judge, Shivamogga, stand quashed.

(iii) Liberty is reserved to the respondents to pass appropriate orders on the explanation submitted by the petitioner in terms of the direction issued in

Crl.P.No.5771/2013 and then proceed with the matter, if the situation still warrants.

Ordered accordingly.

Sd/-

JUDGE

nvj CT:MJ