Sri L C Nagaraja vs The State Of Karnataka
2022 Latest Caselaw 12502 Kant

                            1



         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 17TH DAY OF OCTOBER, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.2592 OF 2022

BETWEEN:

SRI L.C.NAGARAJA
S/O LATE LINGAPPA,
AGED 54 YEARS,
R/AT JANAMUKHI HOUSE,
B.H.ROAD, NELAMANGALA,
BENGALURU RURAL DISTRICT - 572 123.

                                               ... PETITIONER
(BY SRI A.S.PONNANNA, SR.ADVOCATE FOR
    SRI DHANUSH MENON, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY ANTI CORRUPTION BUREAU (ACB),
       POLICE STATION,
       NO.49, KANIJA BHAVAN,
       RACE COURSE ROAD,
       BENGALURU - 560 001
       REP. BY SPECIAL PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       BENGALURU - 560 001.

       (DELETED VIDE COURT ORDER DATED 27.09.2022)

1.     THE STATE OF KARNATAKA
       BY KARNATAKA LOKAYUKTHA,
                                2



     DR.B.R.AMBEDKAR ROAD,
     M.S.BUILDING,
     BENGALURU - 560 001
     REP. BY SPECIAL PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA,
     BENGALURU - 560 001.

2.   SRI BASAVARAJU M.,
     S/O LATE MUNISWAMAPPA,
     AGED ABOUT 47 YEARS,
     R/AT NO.31/8, 4TH CROSS,
     1ST MAIN, ROYAL COUNTRY LAYOUT,
     GOTTIGERE POST,
     BENGALURU - 560 083.
                                                  ... RESPONDENTS

(BY SRI B.B.PATIL, SPL.P.P., FOR R1;
    SRI MOHAN KUMAR T., ADVOCATE FOR R2)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 16.02.2022
AND FIR DATED 16.02.2022 IN CR.NO.11/2022 REGISTERED BY
THE RESPONDENT ACB POLICE STATION PRODUCED AT
ANNEXURE-A AND B PENDING ON THE FILE OF THE 23rd ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE FOR THE OFFENCE
P/U/S 7, 12, 13(1)(b) R/W 13(2) OF P.C ACT, AGAINST THE
PETITIONER HEREIN.


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
                             ORDER

The petitioner is before this Court calling in question

registration of crime in Crime No.11 of 2022 for offences punishable

under Sections 7, 13(1)(d), 12 read with 13(2) of the Prevention of

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

2. Heard Sri A.S.Ponnanna, learned senior counsel appearing

for the petitioner, Sri.B.B. Patil, learned Special Public Prosecutor

appearing for respondent No.1 and Sri T.Mohan Kumar, learned

counsel appearing for respondent No.2.

3. Facts adumbrated are as follows:

The petitioner is a senior scale officer of the Karnataka

Administrative Service and is presently working as Administrative

Officer, Sakala Mission, Bengaluru. The petitioner gets into the

service of Government in the year 1988 as Food Inspector and has

been functioning in various capacities right from the said date. A

complaint comes to be registered against the petitioner on

16-02-2022 which becomes a crime in Crime No.11 of 2022 for the

afore-quoted offences. The facts that lead the complainant to

register the crime in terms of the complaint are that the

complainant claims to be in peaceful possession of 20 guntas of

land in Sy.No.37/2 at Vaddarapalya Village, Kothanur Dhakale,

Uttarahalli Hobli, Bangalore South Taluk. The complainant claims

that subsequent to the death of his father, one Lakshamamma, his

mother had come to inherit the property and was enjoying the land

being in peaceful possession of the same. In the year 2007 one Mr.

Khaleel appears to have created a fake General Power Attorney

('GPA' for short) of the mother of the complainant and had sold the

land to one Subramanya through a registered sale deed dated 29-

03-2007 upon which a civil dispute is also filed by the mother of the

complainant in O.S.No.3994 of 2009 seeking declaration and

injunction, wherein the complainant is also a plaintiff along with his

mother.

4. The complaint further alleges that subsequent to the death

of Subramanya, his wife one Leelavathi and her children claimed

inheritance over the property and submitted a representation

before the Tahsildar requesting change of khata in their names.

The complainant's mother files a counter representation disputing

the claim before the Tahsildar. The Tahsildar did not pass any

order of change of khata in the light of pendency of O.S.No.3994 of

2009. Aggrieved by the aforesaid decision of the Tahsildar, the wife

of Subramanya approached the Assistant Commissioner who passes

an ex-parte order in favour of Smt. Leelavathi. This was challenged

before the Deputy Commissioner who affirms the said order of the

Assistant Commissioner. All these orders were called in question

before this Court in Writ Petition No.26010 of 2014.

5. This Court by its order dated 21-11-2014 remitted the

matter back to the hands of the Assistant Commissioner to hear the

parties and pass appropriate order. When the matter was remitted

back, the petitioner herein was holding the post of Assistant

Commissioner. Therefore, whatever has transpired prior to the

petitioner holding the post of Assistant Commissioner in the year

2014 does not concern the petitioner. It is alleged that the

petitioner while considering the matter on its remand, informs the

complainant that if he would pay him Rs.6/- lakhs he would pass

order in favour of the complainant. It is also alleged that Rs.2/-

lakhs was paid on going to the house of the petitioner in the year

2015 to be precise on 15-03-2015.

6. On 16.05.2015 one Vasanthkumar who was a party to the

proceedings before the petitioner in the subject case constructs a

wall around the disputed property. The complaint alleges that on

making enquiry the complainant then comes to know that the

petitioner had already passed an order and, therefore, the

compound wall was being constructed in terms of the order of the

petitioner dated 30-04-2015. The complainant aggrieved by the

order of the petitioner dated 30-04-2015 files an appeal before the

Deputy Commissioner. The Deputy Commissioner upholds the order

of the petitioner in terms of his order dated 07-07-2015.

7. The complainant did not choose to challenge the said order

but takes an alternate route and registers a private complaint

against the petitioner alleging that he has demanded bribe. The

private complaint comes to be rejected for want of sanction as in

terms of the judgment in the case of M.K.AYYAPPA V. STATE BY

LOKAYUKTA POLICE reported in 2013(5) Kar.L.J. 325 this

Court had held that even at pre-cognizance stage sanction would be

necessary. The private complaint, therefore, comes to be rejected.

The rejection of the private complaint becomes final. Therefore, two

proceedings have now become final - one, the order of the Deputy

Commissioner against the complainant and the other, the efforts of

the complainant to register a private complaint which is rejected on

02-09-2015.

8. When things stood thus, after about 7 years, on

16-02-2022 the complainant approaches Anti Corruption Bureau

('ACB' for short) and registers a complaint narrating that the

petitioner had demanded money in the year 2015, particularly on

15-03-2015 at 9.30 a.m. at his house. Therefore, the complaint

comes to be registered for an incident that has happened in the

year 2015 which is after 7 years of the said incident and comes to

be registered as Crime No.11 of 2022.

9. The learned senior counsel would submit that there cannot

be a better example of misuse and abuse of the provisions of law in

registering a complaint. The ACB at least could have exercised

some caution in registering the crime against the petitioner, as on

facts all proceedings that had been concluded in the year 2015 are

sought to be complained in 2022 that too after closure of all other

avenues to the complainant. He would submit that such mala fide

institution of proceedings should not be permitted to be continued.

10. The learned counsel for the respondent No.1- Lokayukta

would vehemently refute the submissions to contend that there is

demand and acceptance with reference to which there are

recordings. Merely because the complainant has approached the

ACB after about 7 years would not wipe out the crime and,

therefore, would submit that they should be permitted to

investigate.

11. In answer to the said contention, the learned senior

counsel would contend that it is for the said reason Section 17A is

incorporated into the Act. There is no permission accorded by the

competent authority to investigate in terms of Section 17A of the

Act. Therefore, on all these counts, he seeks quashment of entire

proceedings.

12. The afore-narrated facts are not in dispute. The case in

which the complainant had claimed certain reliefs lands at the

hands of the petitioner only in the year 2014, though the genesis of

the issue was 7 years before. The petitioner passes an order after

hearing all the parties on 30-04-2015. This was challenged before

the Deputy Commissioner who also affirms the order dated

30-04-2015 in terms of his order dated 07-07-2015. It was always

open to the complainant to challenge the order of the Deputy

Commissioner before any higher judicial fora including this Court.

The complainant does not choose to do so. He seeks registration of

a private compliant against the petitioner. The private complaint is

rejected for want of sanction in terms of the order of the learned

Magistrate dated 02-09-2015. There is no further action taken by

the complainant pursuant to the said order. The said order has

attained finality.

13. After 7 years, narrating the incidents allegedly happened

in the year 2015 a complaint comes to be registered on 16-02-

2022. There is no reason even to the minutest recorded in the

complaint as to why the complainant kept quiet for seven years and

narrating every incident that has happened either in the year 2015

or 2016 the complaint is registered. Immediately thereafter, a

crime is registered for the aforesaid offences against the petitioner

by a disgruntled complainant who has lost his case before the quasi

judicial and judicial fora and after about 7 years of such loss seeks

to set the criminal law in motion. There is no explanation

forthcoming for the delay.

14. The complaint, on the face of it, is mala fide. Even the

recording that the complainant narrates is of the year 2016, which

is six years ago. The facts narrated would undoubtedly lead to an

unmistakable conclusion that the proceedings are instituted with an

intention which is mala fide and if the institution of a proceeding is

itself mala fide, permitting further proceedings on such mala fide

action, would run foul of the judgment of the Apex Court in the case

of STATE OF HARYANA V. BHAJAN LAL - 1992 SUPP (1) SCC

335 wherein the Apex Court holds as follows:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of

myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

(Emphasis supplied)

At clause-7 of the afore-quoted paragraph, the Apex Court clearly

holds that it is well within the power of the High Court exercising its

jurisdiction under Section 482 of the Cr.P.C. to obliterate such

proceedings instituted, which on the face of it are mala fide.

15. If the facts hereinabove are considered on the touchstone

of the principles laid down by the Apex Court (supra), it would

unmistakably lead to obliteration of proceedings against the

petitioner. Insofar as the judgments relied on by the learned

counsel representing ACB/Lokayuktha are concerned, they are all

concerning permission/approval under Section 17A of the Act and

would not be applicable to the facts that have merited consideration

at the hands of this Court.

16. In the light of the finding of the Court that the entire

action is mala fide and is hit by the aforesaid clause in the case of

BHAJAN LAL, there need not be any deliberation or deep delving

of the issue whether Section 17A of the Act was necessary or

otherwise, in the facts of the case at hand. Therefore, all those

judgments on which the learned counsel for the respondent No.1-

ACB/Lokayuktha would seek to place reliance upon, are not

considered, as the very issue with regard to Section 17A of the Act

is not dealt with.

17. For the aforesaid reasons, I pass the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) Crime No.11 of 2022 registered pursuant to complaint dated 16-02-2022 and pending before the 23rd Additional City Civil and Sessions Judge, Bengaluru stands quashed.

Consequently, I.A.No.2/2022 also stands disposed.

Sd/-

JUDGE

bkp CT:MJ