Karnataka High Court
Mr. Manjunathachari G vs State By Karnataka Lokayukta Police on 8 December, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC:45170
CRL.P No. 11054 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 11054 OF 2023
BETWEEN:
MR. MANJUNATHACHARI G
S/O LATE GANESHACHARI,
AGED ABOUT 41 YEARS,
FORMERLY WORKING AS
HEAD CONSTABLE-8198,
H.A.L. POLICE STATION,
WHITEFIELD DIVISION,
BENGALURU,
RESIDENT OF NO.541, 2ND CROSS,
I.T.I. LAYOUT, MYSORE ROAD,
BENGALURU-560060.
...PETITIONER
(BY SRI. K.B.K. SWAMY, ADVOCATE FOR
Digitally signed by B
K
SRI. NAGARAJ B. GADEKAR, ADVOCATE)
MAHENDRAKUMAR
Location: HIGH
COURT OF AND:
KARNATAKA
1. STATE BY KARNATAKA LOKAYUKTA POLICE
BANGALORE URBAN DISTRICT,
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
2. RAMAMOHAN A
S/O ANNAYAPPA,
AGED ABOUT 50 YEARS,
RESIDENT OF NO.257,
SRI SATYASAI NEELAYA,
-2-
NC: 2023:KHC:45170
CRL.P No. 11054 of 2023
K.M. TEMPLE STREET, WHITEFIELD,
BENGALURU-050 066.
...RESPONDENTS
(BY SRI. B.B. PATIL, ADVOCATE FOR R-1;
V/O DATED 23.11.2023, NOTICE TO R-2 IS D/W)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS PENDING CONSIDERATION BEFORE
THE COURT OF XXIII ADDL. CITY CIVIL SESSIONS JUDGE AND
SPECIAL JUDGE FOR PREVENTION OF CORRUPTION ACT, AT
BENGALURU CITY IN SPL.C.C.NO.482/2018 (CR.NO.10/2017)
REGISTERED BY THE, ANTI-CORRUPTION BUREAU AT
BENGALURU CITY, FOR THE OFFENCE P/U/S 7, 13(1)(d) R/W
13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is sought to be prosecuted for the offences
punishable under Sections 7, 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act, 1988.
2. The case of the prosecution is that the petitioner,
who had demanded gratification from the complainant, was
caught red handed while accepting the money.
3. The learned counsel for the petitioner submits that
against the similar allegation, a departmental enquiry was
conducted by the Officer concerned, and after conducting the
enquiry, submitted a report stating that the there is no
evidence to show that the petitioner has obtained the bribe
amount from the complainant to show any official favour and
exonerated the petitioner on merits. In support, he places
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reliance on the decision of the Hon'ble Supreme Court in the
case of Ashoo Surendranath Tewari vs. Deputy
Superintendent of Police, EOW, CBI and another reported
in (2020) 9 SCC 636.
4. On the other hand, learned High Court Government
Pleader for the respondent-State submits that, merely because
the petitioner has been exonerated in the departmental
enquiry, it would not lead to exoneration or acquittal in criminal
cases. In support, he places reliance on the decision of the
Honble Supreme Court in the case of State (NCT of Delhi) vs.
Ajay Kumar Tyagi reported in 2012 (9) SCC 685.
5. Considered the submissions made by the learned
counsel for the parties.
6. The issue involved in this petition was examined by
the coordinate Bench of this Court in Crl.P No.391/2017 and
connected matters (DD 16.3.2023)and this Court in paras-14
and 15 has held as follows:
"14. The respondent - Lokayuktha has also
placed on record the authorization given by the
Dy.SP under proviso to Section 17 of the
Prevention of Corruption Act, 1988 to register and
investigate the offence under the provision of the
said Act. Proviso to Section 17 of the Act specifies
that the police officer not below the rank of
Inspector of Police may investigate such offences if
authorized by the State Government. The
unamended proviso to Section 17 of the Act
indicates that an offence referred to in Clause (e)
of sub-Section (1) of Section 13 shall not be
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investigated without the order of a police officer
not below the rank of a Superintendent of Police.
To put it simply, the offence under Clause (e) of
sub-Section (1) of Section 13 shall be investigated
only on an order passed by the Superintendent of
Police. In the absence of any power to authorize
the registration of the FIR, the order passed by
the Superintendent of Police concerned authorizing
the Police Inspector to register the FIR is one
without authority of law.
15. The respondent - Lokayuktha has not
placed any material before this Court to
substantiate that the FIRs were registered by the
Police Inspector/s at the time when the officer in
charge of the police station i.e. Dy.SP/s were not
available in the police station."
7. The Hon'ble Supreme Court in the case of
Radheshyam Kejriwal Vs. State of West Bengal (2011) 3 SCC
581 has laid the principle which reads thus:
"38. The ratio which can be culled out from
these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal
prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each other;
(iv) The finding against the person facing
prosecution in the adjudication proceedings is not
binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the
Enforcement Directorate is not prosecution by a
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competent court of law to attract the provisions of
Article 20(2) of the Constitution or Section 300 of the
Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings
in favour of the person facing trial for identical
violation will depend upon the nature of finding. If
the exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution may
continue; and
(vii) In case of exoneration, however, on
merits where the allegation is found to be not
sustainable at all and the person held innocent,
criminal prosecution on the same set of facts and
circumstances cannot be allowed to continue, the
underlying principle being the higher standard of
proof in criminal cases."
8. The Hon'ble Supreme Court consisting of three
learned Judges in the case of the State (NCT of Delhi) (supra)
without reference to the decision in the case of Radheshyam
Kejriwal (supra) has held that the High Court misread the
judgment in P S Rajya -vs- State of Bihar ((1996) 9 SCC 1)
and exoneration in departmental proceeding ipso facto would
not lead to exoneration or acquittal in a criminal case. It was
further noted that the decision of P S Rajya case which was
rendered by the Bench consisting of two learned Judge was
distinguished in a subsequent decision in the case of State -vs-
L. Krishnamohan which was again by a two Judges and
accordingly held that the decision in P S Rajya was not an
authority for the presumption that exoneration in departmental
proceeding ipso facto would lead to a judgment of acquittal in a
criminal trial.
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9. The Hon'ble Apex Court in Hyder Consulting (UK)
Ltd. v. State of Orissa, (2015) 2 SCC 189 has held that a
decision can be said to be given per incuriam when the court of
record has acted in ignorance of any previous decision of its
own, or a subordinate court has acted in ignorance of a decision
of the court of record. Therefore the decision of State (NCT of
Delhi) which has not taken into account and consideration of
the earlier decision of the Supreme Court in Radheshyam is
said to be per incuriam.
10. The Full Bench of this Court in the case of
Govindanaik G Kalaghatigi -vs- West Patent Press Co. Ltd. has
held that where there is a conflict between two decisions of the
Hon'ble Supreme Court of the same Bench strength, it is latter
of the decision that would prevail. The decision of the Bench
consisting of three Judges in the case of Ashoo Surendranath
Tewari would prevail over the decision in the case of State (NCT
of Delhi) rendered by three Judges which is a later judgment.
Though the decision of the State (NCT of Delhi) was unanimous
and whereas in the case of Radheshyam Kejriwal (supra) it was
a majority of 2:1, the total strength of the Bench that they
decided the case is deemed to be the Bench strength of that
decision despite dissenting opinion as held by the Hon'ble
Supreme Court in the case of Shanti Fragrances -vs- Union of
India (2018) 11 SCC 305.
11. In the instant case, the departmental enquiry was
initiated against the petitioners-accused and after conducting
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the enquiry, the Enquiry Officer submitted a report stating that
the charges against the delinquent have not been proved.
Hence, in view of the ratio enunciated by the Hon'ble Apex
Court, the impugned criminal proceeding cannot be continued
against the accused, who has been exonerated on identical
charges in the departmental enquiry, the underlying principle
being higher standard of proof in criminal cases.
Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) The impugned proceedings in Spl.C.C.No.482/2018
(Crime No.10/2017) on the file of XXIII Addl. City Civil and
Sessions Judge and Special Judge at Bengaluru is hereby
quashed.
Sd/-
JUDGE
BKM
