Dr Kallappa S/O Late Mahadevappa ... vs The Deputy Superintendent Of ...
2023 Latest Caselaw 5624 Kant

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                                                             CRL.P No. 103443 of 2022




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 16th DAY OF AUGUST 2023

                                                    BEFORE

                                THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                                 CRIMINAL PETITION NO. 103443 OF 2022

                      BETWEEN:

                      DR. KALLAPPA S/O LATE MAHADEVAPPA HOSAMANI,
                      AGE. 62 YEARS, OCC. PROFESSOR,
                      R/O. NO.39, "SUHASWATHISHREE " BUILDING,
                      2ND MAIN, 3RD CROSS, CITB COLONY,
                      SRINAGAR, DHARWAD-580003.

                                                                          ... PETITIONER
                      (BY SRI. GURUDAS KHANNUR, SR. COUNSEL FOR
                       SRI. A.S. PATIL, ADVOCATE)

                      AND:

                      THE DEPUTY SUPERINTENDENT OF POLICE,
                      KARNATAKA LOKAYUKTH , DHARWAD
                      NOW R/BY THE STATE OF KARNATAKA,
         Digitally    R/BY ITS SPECIAL PUBLIC PROSECUTOR,
         signed by
         VISHAL       DEPUTY SUPERINTENDENT OF POLICE,
VISHAL   NINGAPPA     KARNATAKA LOKAYUKTA,
NINGAPPA PATTIHAL     DHARWAD-580001.
PATTIHAL Date:
         2023.08.18                                                    ... RESPONDENTS
         13:31:02     (BY SRI. ANIL KALE, ADVOCATE)
         +0530


                             THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
                      SEEKING    TO   QUASH   THE   IMPUGNED    FIR   DATED   11.06.2019
                      REGISTERED IN CRIME NO.10/2019 BY RESPONDENT POLICE AND
                      CONSEQUENTIAL PROCEEDINGS PENDING ON THE FILE OF IIIRD
                      ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE,
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                                        CRL.P No. 103443 of 2022



DHARWAD      FOR   THE    OFFENCES     PUNISHABLE   U/S   13(b)    OF
PREVENTION OF CORRUPTION ACT, 1988 AGAINST THE PETITIONER.


     THIS PETITION, HAVING BEEN HEARD AND RESERVED FOR
ADMISSION,     ON        10/08/2023    AND   COMING       ON      FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
                               ORDER

The petitioner is before this Court calling in question

registration of crime in Crime No.10 of 2019 registered on

11.06.2019 for offences punishable under Section 13(1)(b)

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

Act' for short) and pending before the III Additional

District and Sessions Judge & Special Judge, Dharwad.

2. Heard the learned senior counsel Sri Gurudas

Khannur appearing for the petitioner along with Sri A.S.

Patil, Advocate and the learned counsel Sri Anil Kale,

representing the respondent/Karnataka Lokayukta.

3. Facts adumbrated are as follows:-

The petitioner was appointed as a Lecturer in J.S.S.

College, Dharwad in the year 1991. Later on 28-12-1998

the petitioner was appointed as a Reader by direct

CRL.P No. 103443 of 2022

recruitment in the discipline of Organic Chemistry in the

Postgraduate Department of Studies, Karnataka

University, Dharwad. After about 10 years of working as a

Reader, owning to his eligibility, the petitioner was

promoted to the post of Professor in the said Department

of the University and worked as Professor up to 4-08-

2018. Holding the substantive post of Professor, the

petitioner worked as Chairman of Postgraduate Studies

between 4-08-2018 and 22.09.2018. Later from 22-09-

2018 the petitioner also worked as Registrar,

Administration of the University up to 31-01-2009. He

later goes back to his substantive post of Professor.

4. On 11-06-2019 anonymous complaint emerges

before the then Anti-Corruption Bureau. On receipt of the

said complaint, suo motu proceedings were initiated by the

respondent in Crime No.10 of 2019 for offences punishable

under Section 13(1)(b) and 13(2) of the Act. Registration

of crime led the petitioner to this Court in Writ Petition

No.111720 of 2019 calling in question investigation being

conducted in Crime No.10 of 2019 on several grounds.

CRL.P No. 103443 of 2022

This Court rejected the writ petition keeping open all the

contentions and permitting the petitioner to take steps

seeking closure of proceedings against him after filing of

the charge sheet by availing any remedy available to him

in law. The charge sheet is yet to be filed. The petitioner

has again knocked at the doors of this Court in the subject

petition contending that charge sheet has not been filed

despite passage of 3 years and he wants to apply for the

post of Vice-Chancellor of the University as he has retired

on attaining the age of superannuation and his eligibility

would expire on 30th August 2023.

5. The learned senior counsel representing the

petitioner would vehemently contend that the crime is

registered on 11.06.2019 and though more than 4 years

have passed by the respondent/Lokayukta is yet to file its

final report. He would submit that so long as the crime is

pending on his head, the petitioner is unable to apply for

any post which is taking away his fundamental right. He

would contend that on anonymous complaint proceedings

are instituted that too for offences punishable under

CRL.P No. 103443 of 2022

Section 13(1)(b) and 13(2) of the Act. Therefore, the

proceedings should be quashed on account of such delay

in conclusion of investigation and the petitioner be

released from the clutches of crime. He would seek to

place reliance on several judgments of this Court as also of

the Apex Court to buttress his submissions.

6. Per contra the learned counsel representing the

respondent/Lokayukta would vehemently refute the

submissions to contend that this Court has already

considered all these submissions and has directed the

petitioner to avail of appropriate remedy after filing of the

charge sheet. The delay has caused not because of the

respondent/Lokayukta but on account of the petitioner

himself as the petitioner has grossly delayed in submission

of his Schedules-I to XXIII as is required for further

investigation in which he admits that he has 20 bank

accounts. That on further investigation it is revealed that

he has 58 bank accounts. Going behind these bank

accounts and deciphering the transactions has led to gross

delay. He would submit that everything is now ready and

CRL.P No. 103443 of 2022

final report would be filed before the concerned Court

within 2 months.

7. I have given my anxious consideration to the

submissions made by the respective learned counsel and

have perused the material on record.

8. The chain of events with regard to the petitioner

holding certain posts in the University are all as narrated

hereinabove which do not require any reiteration. A

complaint comes to be registered on 11-06-2019 on

account of which a crime is registered in Crime No.10 for

2019 for offences punishable under Section 13(1)(b) and

13(2) of the Act. Section 13 of the Act reads as follows:

"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; or

(b) if he intentionally enriches himself illicitly during the period of his office.

CRL.P No. 103443 of 2022

Explanation 1.--A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2.--The expression "known sources of income" means income received from any lawful sources.]

(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."

Section 13(1)(b) deals with a public servant accepting or

attempts to accept for himself or for any other purpose

any consideration in connection with official functions.

Immediately after registration of crime for the afore-

quoted offence, the petitioner knocks at the doors of this

Court in Writ Petition No. 111720 of 2019 calling in

question the very registration of crime as aforesaid.

Submissions akin to what is now being urged including the

demands that are now sought to be pressed into service

were all made before the co-ordinate Bench. The co-

CRL.P No. 103443 of 2022

ordinate Bench by its order dated 27th August, 2020

dismissed the petition by the following order:

"8. Insofar as the contentions urged on behalf of the petitioner with regard to the Deputy Superintendent of Police who conducted investigation in the instant case not being a person authorized to conduct investigation in view of the embargo contained in the second proviso to Section 17 of the P.C. Act which mandates that no person below the rank of the Superintendent of Police can conduct the investigation is concerned, it is relevant to state that the second proviso prohibits investigation without an order of a Police Officer not below the rank of the Superintendent of Police. In other words, the second proviso does not mandate that the investigation should be conducted by the Superintendent of Police himself; all it states is that in the absence of an order of a Police Officer not below the rank of Superintendent of Police, investigation into alleged offences under Section 13(1)(b) of the Act cannot be conducted by an Investigating Officer.

9. In the instant case, learned counsel for the respondent has produced a proceedings of the Office of the Superintendent of Police dated 11.06.2019 where under the Superintendent of Police has passed a specific order authorizing the Deputy Superintendent of Police to conduct the investigation in respect of the petitioner. A perusal of the said order dated 11.06.2019 will

CRL.P No. 103443 of 2022

clearly indicate that the same is in complete and total compliance of the provisions contained in the second proviso to Sec. 17 of the Act. Consequently, it has to be held that the Dy. Superintendent of Police was clearly authorized by an order dated 11.06.2019 passed by the Superintendent of Police in terms of the second proviso to Sec.17 of the Act and as such the investigation conducted by him was completely legal and proper and as such, the said contention urged on behalf of the petitioner cannot be accepted.

10. Insofar as the second contention urged by the petitioner with regard to absence of material so as to attract the offences alleged u/s 13(1)(b) of the Act is concerned, a perusal of the source report will indicate that the petitioner is alleged to have assets to the tune of Rs.1,05,00,000/- in excess of his known sources of income. It is not in dispute that charge sheet has not been filed so far. Though the petitioner contends that the said figures are fictitious, imaginary and exaggerated and that he is not guilty of the alleged offences, it is not possible to decide these issues in a petition u/s 482 of Cr.P.C. or Article 226 of the Constitution of India and consequently, the facts of the instant case do not warrant interference by this Court at this stage of the proceedings. Suffice it to state that it is open for the petitioner to take appropriate steps and seek closure of the proceedings as against him after filing of the charge sheet by availing any remedy

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CRL.P No. 103443 of 2022

available to him in law including seeking discharge of the petitioner before the trial Court.

In the result, I pass the following order.

ORDER

i. Criminal Petition is hereby dismissed.

ii. All rival contentions between the parties are hereby kept open.

iii. Liberty is reserved in favour of the petitioner to take appropriate steps and seek closure of the proceedings as against him after filing of charge sheet by availing any remedy available to him in law including seeking discharge of the petitioner before the trial Court.

The coordinate Bench considers all the contentions of the

petitioner and holds that since the charge sheet has not

been filed and though the petitioner contends that the

figures projected are all imaginary and exorbitant, it is not

possible to decide the issues involved under Section 482 of

the CrPC at that stage. Liberty was reserved in the

petitioner to avail all such remedy in the event the charge

sheet is filed against him. The order was passed on 27th

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CRL.P No. 103443 of 2022

August 2020 and we are now on 10th August 2023. Even

then the final report is not filed by the

respondent/Lokayukta. In the normal circumstances if four

years had been taken for filing a charge sheet in any

matter except in heinous offences or economic offences,

this Court would have viewed that with a different lens.

Though four years have passed by, the case at hand is one

of disproportionate assets. It is the case of the petitioner

himself that he is operating 20 bank accounts.

Justification is that those are accounts in which loans have

been taken for various necessities of the petitioner and

few of them are joint accounts. The admission did not

stop at that. It is the submission of the learned counsel for

the respondent who has produced several documents by

way of a memo to demonstrate that there are 58 bank

accounts of the petitioner which have been unearthed

during investigation and there are transactions in all the

58 bank accounts. Insofar as submission of Schedules I to

XXIII which are necessary for consideration of further

investigation, it is the case of the Lokayukta that despite

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CRL.P No. 103443 of 2022

issuance of several notices, the petitioner has submitted

his Schedules I to XXIII only on 19-02-2022. The

disproportionate assets projected on account of those

transactions is 136%. Whether they are fanciful figures or

simply projected without any realm or reason cannot at

this juncture be considered particularly in the light of the

fact that the petitioner had approached this Court earlier

calling in question the very same registration of crime on

the very same grounds and has suffered an order of

dismissal and the said order has become final. A perusal

at the documents appended to the memo would indicate

that the petitioner is operating 31 savings bank accounts

and about 21 loan accounts. But the petitioner had only

divulged 20 bank accounts which were inclusive of both

savings and loan accounts. The investigation has led to

existence of 54 accounts. The learned counsel submits

that four more have now been gathered. If in the teeth of

the aforesaid facts the petitioner is left off the hook on the

score that despite passage of 4 years no charge sheet has

been filed, it would run counter to law. The income

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CRL.P No. 103443 of 2022

yearwise and all other investigations are now complete as

per the records produced and as per the submissions

made on the strength of records and they now come

within the realm of seriously disputed questions of fact as

all the materials are gathered during investigation.

Projection of fanciful figures in the source report and

continuing criminal proceedings on such fanciful reports

have been found fault with by this Court in plethora of

cases. Since that has already been decided by the co-

ordinate Bench of this Court while answering the crime so

challenged in the aforesaid petition and the said order

becoming final, the fate of contentions of the petitioner

have all been frozen up to the point of the

respondent/prosecution filing its final report before the

concerned Court.

9. The submission of the learned senior counsel that

the petitioner is deprived of his right of application for the

post of Vice-Chancellor and therefore, the proceedings

should be quashed is unacceptable as it is the act of the

petitioner that has led to the situation that he is now been

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CRL.P No. 103443 of 2022

shrouded with. If only all the information at the outset had

been divulged by the petitioner, the situation that has now

emerged would not have been there. Therefore, on the

score that the petitioner cannot apply to the post of Vice-

Chancellor on account of pendency of crime and for that

reason it should be quashed is noted only to be rejected.

10. In so far as judgments that are relied on by the

learned senior counsel for the petitioner on entertainment

of anonymous complaint in the case of CHRISTY FRIED

GRAM INDUSTRIES AND OTHERS v. STATE OF

KARANTAKA AND OTHERES - Writ Petition Nos.6225-

26/2014 c/w Writ Petition Nos.2172-2173/2015, Criminal

Petition Nos. 7997/2013, 815/2014 and 7996/2013

rendered by a co-ordinate Bench of this Court on

30.10.2015 or the mandatory requirement of conduct of a

preliminary enquiry in the case of KOGUNDI DYAMANNA

AND OTHERS v. MANIKANTA SARKAR AND OTHERS -

Criminal Petition No.8034/2013 c/w Criminal Petition

7948/2013 decided on 13.02.2017 by another co-ordinate

Bench or the judgment of the Apex Court in the case of

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CRL.P No. 103443 of 2022

STATE OF HARYANA v. BHAJAN LAL - 1992 Supp (1) SCC

335 would not come to the aid of the petitioner at this

juncture only on the score that he has approached this

court on the very same ground and his contentions have

been negatived. Insofar as reliance being placed on the

judgment of the Apex Court with regard to delay in filing

the charge sheet is concerned, the same again would be

unacceptable for the reason that the delay will have to be

considered on a case to case basis. As observed

hereinabove, the enormous task that was faced by the

prosecution to unearth transactions of the petitioner had

undoubtedly taken time. Therefore, the delay in the

peculiar facts of the case at hand is not vital which would

lead to obliteration of the crime itself. The prosecution

cannot now sleep over the matter any further. An outer

limit is required to be directed for filing of the final report

before the concerned Court.

11. A parting observation would not be inapt owing

to the facts obtaining in the case at hand. In the present

case the delay has occasioned account of the petitioner in

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not divulging numerous accounts held by him. Unearthing

of those accounts by the prosecution is one of the reason

for delay. This Court has come across several cases where

investigation has gone on for ages and no final report was

filed. It, therefore, speaks of volumes of lackadaisical

attitude on the part of the prosecution/ Lokayukta. In

this view of the matter, the Lokayukta is required to set its

house in order by directing completion of investigation

within a time frame failing which the Damocles sword of

prosecution will always be hanging on the head of the

public servant and defeat several of his rights, if any. It is

hoped that this case would become an eye opener for

speedy completion of investigation for which lack of will of

the Lokayukta has to be effaced.

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

ORDER

i) The Criminal Petition stands rejected.

ii) The respondent/ Lokayukta shall file its final

report within 2 months from the date of receipt

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CRL.P No. 103443 of 2022

of a copy of this order. In the event the final

report is not filed within the said time, the

concerned Court is at liberty to draw adverse

inference against the Lokayukta.

Sd/-

JUDGE

kmv Ct:Bck