Sri. M.P. Renukacharya vs State Of Karnataka
2023 Latest Caselaw 2042 Kant

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28 TH DAY OF MARCH 2023

                        BEFORE

         THE HON'BLE MR. JUSTICE K.NATARAJAN

          CRIMINAL PETITION NO.2098 OF 2017

BETWEEN

SRI. M.P. RENUKACHARYA
S/O LATE SRI.PANCHAKSHARAIAH,
AGED ABOUT 54 YEARS,
EX.EXCISE MINISTER,
NO.1 D, NYAMATHI MAIN ROAD,
OPPOSITE L.I.C. OFFICE,
HIREMATT,
HONNALI-577217,
DAVANAGERE DISTRICT.                  ... PETITIONER

(BY SRI HAREESH BHANDARY T., ADVOCATE)

AND

1.     STATE OF KARNATAKA
       LOKAYUKTHA POLICE,
       REPRESENTED BY STATE PUBLIC PROSECUTOR,
       M.S. BUILDINGS,
       BANGALORE.

2.     SRI GURUPADAIAH KABBINAKANTHI MATTAD
       S/O REVANAIAH,
       AGED ABOUT 37 YEARS,
       PRESIDENT,
       BRASTHACHARA VIRODHI VEDHIKE,
       KARNATAKA,
                                2


     NEAR KARNATAKA BANK,
     NYAMATHI ROAD,
     HONNALI-577217,
     DAVANAGERE DISTRICT.
                                    ... RESPONDENTS
(BY SRI B.S. PRASAD, ADVOCATE FOR R1
 SRI J.D. KASHINATH, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN CRIME NO.6/2015 REGISTERED BY THE
DAVANAGERE LOKAYUKTHA POLICE STATION ON THE FILE
OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DAVANAGERE    FOR    OFFENCE    PUNISHABLE   UNDER
SECTIONS 13(1)(e) READ WITH SECTION 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988 AND SECTIONS
120B AND 420 OF IPC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 03.03.2023, THIS DAY, THE
COURT MADE THE FOLLOWING :

                          ORDER

This petition is filed by the petitioner/accused under

Section 482 of Cr.P.C. for quashing the criminal

proceedings in FIR in Crime No.6/2015 registered by the

Davangere Lokayukta police for the offence punishable

under Sections 13 (1)(e) read with 13(2) of the Prevention

of Corruption Act, 1988 and Sections 120B and 420 of IPC

pending on the file of Principal District and Sessions Judge,

Davangere.

2. Heard the arguments of learned counsel for the

petitioner and special counsel for respondent

No.1/Lokayukta and learned counsel for respondent No.2.

3. The case of the prosecution is that on the

complaint filed by respondent no.2 one Gurupadaiah the

police have registered FIR on 30.11.2015 in crime

No.6/2015 and it was alleged that the respondent No.2

claiming himself to be president of Brashtachara Virodi

Vedike filed a private complaint under Section 200 of

Cr.P.C before the special Court for Lokayukta on 28.4.2015

alleging that the petitioner had amassed wealth

disproportionate to his known source of income while he

was a Member of Legislature Assembly during 2004 to

2008, again from 2008 to 2013 and also from 25.12.2009

to 23.12.2013 when he was Cabinet Minister of

Government of Karnataka. In the year 2004 when he had

filed nomination paper for contesting the MLA election at

Honnalli, he has declared his assets at Rs.26,07,319/-and

thereafter in the year 2008 election he had declared his

assets as Rs.73,97,828 and in the year 2013 he has

declared assets as Rs.4,95,32,608/-. It was alleged that

there was raise of income and assets during his tenure as

Minister in the State Government of Karnataka, he along

with his brother has established Educational Institution by

name Bapuji Educational Institution at Shimoga and the

brothers had also amassed huge wealth when the

petitioner was MLA and there after became the Minister.

The petitioner by using office and by abusing his official

position accumulated huge movable and immobile

properties, which is disproportionate to his income. Based

upon the private complaint, the same was referred to

Lokayukta police under section 156 (3) of Cr.P.C, in turn

the police investigated the matter and submitted the

report. The police in Crime No.5/2015 against the

petitioner and his brothers for the offence punishable

under Sections 13 (1)(d) and (e) of the Prevention of

Corruption Act, 1988 and Section 120B and 420 of IPC. It

is further alleged that the petitioner and his brother have

challenged FIR in Crime No.5/2015 by filing

Crl.P.No.3431/2015 before the High Court. The High Court

vide its order dated 04.09.2015 had allowed the petition

and quashed the FIR and consequential proceedings and

liberty was reserved for complainant to pursue his

complaint in accordance with procedure laid down by

Hon'ble Supreme Court in the case of Priyanaka

Srivastava and Anr. Vs. State of Uttar Pradesh and

other reported in (2015) 6 SCC 287 and all contentions

of both parties were left open.

4. Subsequently the petitioner had approached the

Superintendent Police of Lokayuktha and filed the

complaint and the same was registered by the Lokayuktha

police in Crime No.6/2015 for the same alleged offence

punishable under section 13 (1)(d) and (e) of the

Prevention of Corruption Act, 1988 and section 120B and

420 of IPC and registered the FIR which is under

challenge.

5. The learned counsel for the petitioner has

contended based upon the same set of facts two FIR's

have been registered which is clear case of abuse of

process of law and the respondent have filed false

complaint against the petitioner and when the High Court

set aside the FIR, the question of filing complaint to

Lokayukta Police does not arise as the High Court had set

aside the FIR for non following the guidelines of

Priyanaka Srivastava stated supra. Therefore, the

respondent required to file private complaint, but he has

filed a direct complaint to the police which is registered as

FIR. Absolutely, there is no material against the

petitioner. The respondent No.2 is Janatha Dal political

party, an opponent to the petitioner for prosecuting the

case against the petitioner. The sanction under section

197 of Cr.P.C is mandatory which is not obtained by the

prosecution, therefore the learned counsel for petitioner

prayed for quashing the FIR.

6. Per contra learned special counsel for

Lokayukta has contended the police already investigated

the matter and final report was ready, they were waiting

for receiving the sanction from the State for filing the

charge sheet and further contended that the previous

complaint has been quashed by the High Court on the

ground for not following the guidelines issued by the

Hon'ble Supreme Court in Priyanaka Srivastav's case as

he did not approach the police and higher official of police

under section 154 (1) & 154 (3) of Cr.P.C. Therefore, in

order to comply the provisions of 154 (1) of Cr.P.C, he

approached the police and filed the complaint, but the

Lokayukta police received the complaint and registered the

FIR. Therefore, there is no need for approaching the

higher officers under section 154 (3) of Cr.P.C and filing

private complaint under section 200 Cr.P.C does not

arises. There is no flaw in the procedure, it is not second

FIR, based upon the same set of facts as in the first FIR

the complaint has been quashed by the High Court and

liberty was granted. Hence prayed for dismissing the

petition.

7. The learned counsel for respondent No.2 also

submitted the same and contended, he has acted in

accordance with law and therefore, prayed for dismissing

the petition.

8. Having heard the arguments and perused the

records. On perusal of the records, it is an admitted fact,

the respondent No.2 filed a private complaint against this

petitioner which was numbered as PCR No.2/2015 on the

file of Principal District and Sessions Court and Special

Court, Davangere and learned Sessions Judge referred the

complaint to the SP Lokayukta under section 156 (3) of

Cr.P.C. Inturn the Lokayukta police registered the FIR in

Crime No.5/2015 on 2.5.2015 for the offences punishable

under Sections 13 (1)(d) and (e) of the Prevention of

Corruption Act, 1988 and Section 120B and 420 of IPC. It

is also an admitted fact, that both petitioners approached

the High Court by filing the criminal petition under section

482 of Cr.P.C and the coordinate bench of this court has

quashed the FIR, in Crl.P.No.3431/2015 dated 4.9.2015 as

there was no compliance of Priyanaka Srivastav's case

for non filing the affidavit and approaching the police under

section 154 of Cr.P.C. and liberty given to the complainant

to pursue the complaint in accordance with procedure laid

down by the Hon'ble Supreme Court.

9. In view of the judgment of the co-ordinate bench

of the High Court for having quashed the FIR and

complaint for non-compliance of Priyanaka Srivastav's

case as he had not approached the police under section

154 of Cr.P.C. Therefore, in order to comply the guidelines

of the Hon'ble Supreme Court, the petitioner filed First

information before Lokayukta police and immediately

Lokayukta police Davangere received the complaint and

registered the FIR in Crime No.6/2015 which is under

challenge.

10. The learned counsel for the petitioner has

contended, it is a multiple FIRs on the same complaint and

he has relied upon the judgment of Hon'ble Supreme Court

AIR Online 2022 SC 1393::2022 (3) CRI LR (RAJ)

1132 and prayed for quashing the FIR. Therefore, prior to

discussing the case on merits, it is worth to mention the

guidelines issued by Hon'ble Supreme Court in Priyanaka

Srivastava's case at para.29, 30, and 31.... which is as

under:-

"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations.

This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That

apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption

cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

On bare reading of the principle laid down by the

Hon'ble Supreme Court at Para 31, it has held prior to

invoking the provisions under section 156 (3) of Cr.P.C for

referring the complaint to the police upon filing the private

complaint, the complainant shall first approach the police

authority under section 154 (1) Cr.P.C and if the police

have not taken any action, then as per section 154(3) of

Cr.P.C, the complaint shall be sent to the higher

authorities like Superintendent of Police etc., Even then

the police not acted upon on the complaint of the

complainant, then the complainant shall approach the

Magistrate by filing private complaint under Section 200 of

Cr.P.C and shall get it referred to the police under section

156 (3) of Cr.P.C.

11. Admittedly, the complainant without

approaching the Lokayukta police at Davangere in order to

file First Information as required under section 154 (1) of

Cr.P.C or 154 (3) of Cr.P.C before the Superintendent of

Police, but he has directly filed private complaint before

the District Court and got it referred to the police for

investigation under section 156 (3) of Cr.P.C. Therefore,

the co-ordinate bench of High Court has rightly quashed

the FIR and the complaint. The liberty was granted to

follow the procedures as per the Priyanaka Srivastava's

case. As per the judgment of the co-ordinate bench of

this court in Crl.P.No.3431/2015 dated 4.9.2015.

Therefore, the respondent/complainant in order to invoke

section 154(1) of Cr.P.C., he went to the Lokayukta police

Davangere, for filing the complaint under section 154 (1)

of Cr.P.C but the Lokayukta police received the complaint

and acted upon, by registering the FIR in Crime No.6/2015

for the above said offences as on 30.11.2015. Therefore,

once the case filed under section 154(1) of Cr.P.C has

been complied by the complainant and the police also

registered the FIR. The question of the complainant going

to the Superintendent of Lokayukta under section 154(3)

of Cr.P.C does not arise. Moreover when the Lokayukta

already received the complaint and registered the FIR, the

question of going back to Sessions Judge for filing the

complaint under Section 200 of Cr.P.C and referring the

complaint under section 156(3) of Cr.P.C does not arise.

As per the Hon'ble Supreme Court in Priyanaka

Srivastava's case the litigant shall approach the

Magistrate under section 200 of Cr.P.C and referring the

complaint to the police under section 156 (3) of Cr.P.C

only after exploring the remedies available before the

police under section 154 (1) and (3) of Cr.P.C. Such being

the case, the contention of the learned counsel for the

petitioner that this FIR is based upon the same cause of

action and multiple FIR's cannot be acceptable as there is

no multiple FIR in this case, since the earlier FIR has been

quashed by co-ordinate bench in Crl.P.No.3431/2015 .

However, if at all the complaint in PCR is pending before

the Sessions Judge, it is no use as the complainant can

withdraw the same on the ground of becoming infructuous

as the police already registered FIR and investigating the

matter. Therefore the judgment relied by the learned

counsel for the petitioner in AIR Online 2022 SC

1393::2022 (3) CRI LR (RAJ) 1132 is not applicable to

the case on hand as there is no multiple FIR on the same

cause of action. Therefore, the petition is devoid of merits

and liable to dismissed.

Accordingly the criminal filed by the petitioner

accused is hereby dismissed.

Sd/-

JUDGE

AKV